National Weather Service Employees Organization, Branch 9-10 (Union) and United States, Department of Commerce, National Oceanic and Atmospheric Administration, Aircraft Operations Center, Macdill Air Force Base, Florida (Agency)

[ v61 p779 ]

61 FLRA No. 156

NATIONAL WEATHER SERVICE
EMPLOYEES ORGANIZATION
BRANCH 9-10
(Union)

and

UNITED STATES
DEPARTMENT OF COMMERCE
NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION
AIRCRAFT OPERATIONS CENTER
MACDILL AIR FORCE BASE, FLORIDA
(Agency)

0-NG-2832

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

September 15, 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). It concerns the negotiability of one multi-part proposal that, among other things, would permit employees to decline to fly on aircraft on which the pilots do not meet the proposed flight time requirements. The Agency filed a statement of position. The Union filed a response to the statement of position and the Agency filed a reply thereto.

      For the reasons that follow, we find that the proposal is outside the duty to bargain and dismiss the petition for review.

II.     Background

      The Aircraft Operations Center, MacDil1 Air Force Base, Florida (Agency or AOC), is home to the fleet of aircraft operated by the United States Department of Commerce, National Oceanic and Atmospheric Administration (NOAA). The aircraft are flown by NOAA Corps officer pilots (NOAA pilots) who are uniformed service officers, rather than civilian employees, and are not in the bargaining unit. [n1]  There are two categories of aircraft: light aircraft, of which there are five types, and heavy aircraft. The Agency states that bargaining unit employees "[o]ccasionally . . . may fly on the light aircraft as part of post maintenance checks, system trouble shooting or during the relocation of the aircraft while providing maintenance support for remote field programs." Statement of Position (SOP) at 5.

      The Agency requires that NOAA pilots obtain a commercial pilots license. See id. at 6, 16 n.18. The Agency states that, based on Federal Aviation Administration (FAA) regulations, an individual may obtain a commercial pilots license from flight schools certified either under Federal Aviation Regulation (FAR) Part 61 or FAR Part 141. See id. The AOC Operations Manual Chapter IV, Section G, entitled "Minimum Flight Experience Requirements" (AOC Operations Manual or Manual), contains a chart that specifies the minimum number of flight hours required of NOAA pilots and co-pilots to fly aircraft. See Petition for Review, Exhibit D. The Agency determined that the minimum flight requirements set forth in the chart are "no longer current with the FAA requirements." SOP at 7. Consequently, the Agency proposed a change that would eliminate flight hour requirements for pilots and copilots on three of the five types of light aircraft. See Petition for Review, Exhibit C; SOP at 8. The Agency did not propose to change the minimum flight hour requirements for the remaining types of light aircraft or the heavy aircraft.

      In response, the Union submitted its proposal, which would identify flight time requirements established by the Office of Personnel Management (OPM) and permit employees to decline to fly on all aircraft (both light and heavy) piloted by NOAA pilots who do not meet OPM's flight time requirements. [n2]  The proposal would also require the Agency to notify employees when pilots not meeting the OPM requirements will be operating aircraft to which the employees are assigned. [ v61 p780 ]

III.     Proposal 1 [n3] 

      The wording of the entire proposal is set forth in the Appendix. In relevant part, the proposal states as follows:

Bargaining unit employees will not be required to fly on aircraft operated by pilots not meeting the OPM Qualification Standards for GS-2181, Aircraft Operator, including the additional requirements for flight test pilots.

IV.     Positions of the Parties

A.      Agency

      The Agency asserts that there is no obligation to bargain over the proposal because there was no change in bargaining unit employees' conditions of employment. In this regard, the Agency states that "AOC's qualifications for its NOAA Corps pilots has always been the same" and that the "update to the manual" simply clarifies AOC's practice that an FAA commercial pilots license "can be earned by either attending [a] FAR Part 61 or [a] FAR Part 141 school." SOP at 10-11. Assuming, however, that there was a change in a condition of employment, the Agency argues that there was no duty to bargain over the proposal because the update to the AOC Operations Manual had a de minimis effect on bargaining unit employees. The Agency explains that the update addresses only three types of light aircraft on which no bargaining unit employees are regularly assigned. Id. at 12.

      The Agency also contends that the proposal affects the rights to assign employees and assign work under §§ 7106(a)(2)(A) and (B) of the Statute and further states that, under § 7106(a)(1) of the Statute, it has the right to determine internal security practices. See SOP at 16 n.18. The Agency argues that the proposal has two effects on its management rights: "(1) it places a precondition on the assignment of work because the Agency would effectively be restricted from assigning bargaining unit employees to planes unless nonbargaining unit pilots met the Union's standards; and (2) it allows the Union to indirectly set nonbargaining unit employees' qualifications by allowing bargaining unit employees to opt out of their duties where nonbargaining unit pilots do not meet the Union's standards." SOP at 14. Based on these effects, the Agency also asserts that the proposal does not constitute a procedure under § 7106(b)(2) of the Statute. See id. at 14.

      The Agency further contends that the proposal does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute. The Agency asserts that the Union failed to articulate how bargaining unit employees are adversely affected by the update to the Manual, noting particularly that the proposal would apply to the types of light aircraft that were not part of the update and would apply to flight test pilots whom the Agency does not employ. [n4]  The Agency also maintains that the proposal is not tailored because it is not limited to the types of aircraft encompassed by the update to the Manual. In any event, the Agency maintains that the proposal would excessively interfere with its management rights. In this regard, the Agency asserts that the proposal "would allow bargaining unit employees to decide whether or not they will perform the work they are assigned and it would allow bargaining unit employees to opt out of their job if the Agency's NOAA Corps pilots do not meet OPM qualifications -- qualifications that are not relevant to the Agency's pilots, who are uniformed service." Id. at 19. The Agency maintains that the proposal would severely restrict its ability to perform aircraft missions that are critical to its operations if flights could not be staffed adequately.

B.      Union

      The Union argues that the Agency is under a duty to bargain over the proposal ìwhether or notî the change to the AOC Operations Manual constitutes a change in the conditions of employment. Response at 3. The Union asserts that "the parties are currently negotiating their initial collective bargaining agreement[,]" and that ìthere need not be a change in the conditions of employment to require the [A]gency to bargain over any matter that is substantively negotiable[.]î Id. The Union further states that the proposal is not intended to address the change in the Manual but, rather, ìis intended to more broadly address the exercise by [the Agency] of its right to conduct its aircraft operations ...." Id. at 7.

      The Union disputes the Agency's claim that the proposal excessively interferes with management's rights. The Union states that the Agency "has not even identified the number of pilots which do not meet the minimum OPM flight hour requirements, nor how long it would take those pilots who do not meet those requirements to gain the additional necessary flight hours." Id. at 9. The Union also states that it "is not proposing that these minimum number of hours of flight experience be required for the NOAA pilots and co-pilots." [ v61 p781 ] Petition for Review at 4 (emphasis in original). Nonetheless, the Union contends that the Agency can avoid "[a]ny interference" with management's rights "simply by requiring its pilots and co-pilots to obtain more flight time before assigning unit employees to their aircraft; and/or by assigning those pilots and co-pilots who have sufficient flight time to those missions to which unit employees are assigned until the newly-minted pilots have obtained the requisite number of hours in the cockpit." Response at 9.

      The Union maintains that employees are adversely affected by assignments to flights that "pose safety risks that exceed routine aviation transport." Id. In support, the Union cites a 2003 report by the Air Safety Foundation of the Aircraft Owners and Operators Association for the proposition that a pilot's low number of total flight hours "is often a significant contributing factor in accidents." Id. at 8 (citing Exhibit 1 at 5). The Union also asserts that the employees would be assigned to fly on test flights with pilots who do not satisfy the test flight experience standards established by OPM. See id. at 6. Additionally, the Union argues that the risk involved in these flights is reflected by the fact that unit employees earn hazard pay. See id. Further, citing AFGE, Local 1345, 48 FLRA 168, 190-91 (1993) (AFGE) (Proposal 12, second sentence) (Member Armendariz dissenting in relevant part and concurring in part as to other matters) and NFFE, Local 29, 29 FLRA 726 (1987) (NFFE) (Provision 2), the Union states that the Authority has found negotiable as appropriate arrangements similar proposals that would limit the ability of an agency to assign work in unsafe circumstances.

      Finally, the Union states that it does not wish to sever any part of the proposal. See Petition for Review at 5; Conference Record at 1.

V.     Analysis and Conclusions

A.      Meaning of the Proposal

      The parties agree that the proposal means that the Agency must include, "for reference purposes," OPM's minimum pilot flight time qualifications, "in whatever list of flight requirements the Agency implements for NOAA Corps officer pilots." [n5]  Conference Record at 2. The parties further agree that the proposal means that bargaining unit employees are permitted to decline to fly on aircraft with NOAA Corps officer pilots who fail to meet the qualification standards established by OPM. See id. In addition, the parties agree that before a bargaining unit employee may be assigned to a flight where a NOAA pilot does not meet the OPM qualification requirements, the Agency must provide the employee with notice of that fact. See id.

B.      The Proposal Is Outside the Duty to Bargain

      The Union does not contest the Agency's contention that the proposal affects various management rights. Therefore, we find that the proposal affects management's rights. See, e.g., Fraternal Order of Police, Lodge #1F, 57 FLRA 373, 384 (2001). As the Union does not argue that the proposal constitutes a procedure within the meaning of § 7106 (b)(2) of the Statute, we address whether the proposal is an appropriate arrangement under § 7106 (b)(3) of the Statute, as the Union claims.

      In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See KANG, 21 FLRA at 31; see also 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 claimed arrangement must also be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., Customs Serv., 55 FLRA at 1187. If the 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(s). 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.

      Assuming, without deciding, that the proposal constitutes an arrangement that is sufficiently tailored, we find that the proposal is not appropriate because it would excessively interfere with management's rights.

      The Agency claims that the proposal would allow employees to decide whether or not to accept work assignments on aircraft that are piloted by individuals [ v61 p782 ] who do not meet flight time requirements prescribed by OPM. Although the Union states that it is "not proposing" that NOAA pilots adhere to OPM's requirements and, in fact, there is nothing in the express terms of the proposal that contains such a requirement, we find that the proposal would effectively obligate the Agency to require that NOAA pilots meet OPM's minimum flight time requirements as a precondition to requiring unit employees to perform certain tasks. In this connection, the Union concedes that the "[a]ny interference" with management rights "can be avoided" either "by requiring its pilots and co-pilots to obtain more flight time before assigning unit employees to their aircraft," or by assigning pilots who meet OPM's requirements "until the newly-minted pilots have obtained the requisite number of hours in the cockpit." Response at 9.

      The Authority previously has held that proposals that require adherence to certain qualifications, and preclude the assignment of work if those qualifications are not met, excessively interfere with management's rights. See, e.g., Professional Airways Systems Specialists, 61 FLRA 97, 99 (2005) (Member Pope dissenting). See also American Federation of Government Employees, Local 3935, 59 FLRA 481, 483-84 (2003) (Chairman Cabaniss dissenting). As the proposal here would preclude the Agency from assigning work to employees on aircraft piloted by NOAA pilots who do not meet OPM's flight time requirements -- by making such assignments optional with the employees -- we find that the burden imposed on the exercise of management's rights is significant. In this regard, the proposal essentially permits employees to decide whether or not to perform certain duties--that is, whether or not to fly on aircraft piloted by certain pilots. Consequently, the Agency has no control over its ability to make those assignments.

      In weighing the benefits to employees from the proposal, we note the Union argues that there would be an increase in employee feelings of personal safety from an increase in the Agency's flight experience standards for pilots. The Union cites specifically to a study, dealing with safety incidents involving all general aviation aircraft pilots (possessing private, commercial, or air transport pilot licenses), and asserts a correlation between hours of experience and safety incidents in general aviation pilots that applies to the pilots here. The Union does not, however, identify any matters of concern arising from the last few years during which pilots have operated under the reduced flight experience hours, or from the entire period of time during which the pilots have flown all of the Agency's aircraft under the established flight experience standards. Consequently, while the proposal to increase all of the Agency's flight experience standards beyond their present amounts may establish a benefit for employees, the Union has not established that the extent of that benefit is more than minimal.

      We also find that the cases on which the Union relies are distinguishable. In AFGE, the second sentence of Proposal 12 precluded the agency from assigning employees to work in confined or enclosed spaces that lacked mechanical or natural ventilation without posting an individual nearby with equipment necessary to effect a safe rescue. The Authority found that the sentence constituted a negotiable appropriate arrangement, balancing the substantial benefits to employees against the infrequent nature of such hazardous assignments. In AFGE, Provision 2 prevented the agency from assigning work to employees in circumstances where they reasonably believed that that the duties present an imminent risk of death or serious bodily harm coupled with an insufficient time within which to abate the hazard. The Authority found that the provision was a negotiable appropriate arrangement, noting that the scope of the provision was sufficiently narrow, required clear evidence to support a fear of danger and would restrict the ability to assign work "[o]nly in the most limited circumstances[.]" 29 FLRA at 733.

      Here, in contrast, the proposal is not designed to be narrowly applied, but is applicable across the full spectrum of Agency aircraft operations. And, while the Union argues the benefit from requiring more experienced pilots, the record does not establish a history of safety issues based upon the existing flight experience of the uniformed service pilots. We note the uniformed service pilots and co-pilots continue to be required to possess a commercial pilots license, must continue to satisfy certain Agency flight requirements and, according to the Agency, receive extensive training.

      In sum, we find, on balance, that the proposal is outside the duty to bargain because it would excessively interfere with the exercise of management's rights.

      Because the Union has not requested that parts of the proposal be severed, if one part of the proposal is outside the duty to bargain, the entire proposal is outside the duty to bargain. See Nat'l Air Traffic Controllers Ass'n, 61 FLRA 341, 347 (2005) (if any portion of a proposal is outside the duty to bargain, the entire proposal falls outside the duty to bargain). Consistent with the discussion above, we find the entire proposal is outside the duty to bargain. [n6] 

VI.     Order

      The petition for review is dismissed. [ v61 p783 ]

APPENDIX

                G. MINIMUM FLIGHT EXPERIENCE REQUIREMENTS     


Footnote # 1 for 61 FLRA No. 156 - Authority's Decision

   The parties agree that that the "NOAA Corps officers are uniformed service, not civilian, employees and are not included in the bargaining unit represented by the Union." See Record of Post-Petition Conference (Conference Record) at 1-2. See also 5 U.S.C.§ 2101, that provides that uniformed service personnel, such as the NOAA pilots, are not "civil service" employees.


Footnote # 2 for 61 FLRA No. 156 - Authority's Decision

   We are unable from the record to determine whether the Union's proposal is in the context of "change" or "term" bargaining. See, e.g., Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1535 (1996). In view of our decision, it is unnecessary to resolve this matter.


Footnote # 3 for 61 FLRA No. 156 - Authority's Decision

   The wording of the proposal is as modified during the post-petition conference. See Conference Record at 1.


Footnote # 4 for 61 FLRA No. 156 - Authority's Decision

   The Agency explains that while it may conduct "test flights," it does not employ "flight test pilots." Reply at 5 n.4.


Footnote # 5 for 61 FLRA No. 156 - Authority's Decision

   Attached to the Petition for Review is a copy of "Section IV-B of the Operating Manual for Qualification Standards for General Schedule Positions" which includes OPM requirements for the position of Aircraft Operator. See Petition for Review, Exhibit E. OPM requires 1200 hours of total flight time for pilots or co-pilots who are Aircraft Operators, which must include at least 250 hours as the pilot-in-command and 50 hours of flying at night. See id. OPM also requires that flight test pilots have at least 1750 hours of total flight tim