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

XX No

64 FLRA No. 23               

FEDERAL LABOR
RELATIONS AUTHORITY

WASHINGTON,
D.C.


_____

NATIONAL AIR
TRAFFIC CONTROLLERS ASSOCIATION

(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION
ADMINISTRATION

(Agency)

0-NG-2864

_____

DECISION AND ORDER
ON NEGOTIABLITY ISSUES


September 30, 2009

_____

Before the
Authority:  Carol Waller Pope, Chairman and

Thomas M. Beck and
Ernest DuBester, Members


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 part 2424 of the
Authority’s Regulations, and concerns the negotiability of a proposal
consisting of three sections.  The Agency filed a statement of position, and
the Union filed a response to the Agency’s statement of position.

            For the reasons that follow, we find that Section
12 of the proposal is within the duty to bargain and that Sections 8 and 13 of
the proposal are outside the duty to bargain.

 II.       Proposal

Section 8.  Radios, television sets,
appropriate magazines/publications, pagers/cell phones, and electronic devices
will be permitted in designated non-work areas at all facilities for use at
non-work times.  Pagers/Cell Phones may be set on a non-audible position
within work areas but their actual use in those work areas is not permitted.

In facilities where pagers/cell
phones interfere with NAS communications equipment due to close proximity, all
such equipment shall be set in the off position when in the immediate vicinity
of the operational position(s).[[1]]

Section 12.  Employees covered by this
Agreement shall not have their reassignment unreasonably delayed pending
employee records/files (medical, security, OPF/EPF, or other DOT/FAA files)
review and/or transfer.

Section 13.  Employees covered by this
Agreement shall not have their reassignment denied solely as a result of
inter-service area budgetary constraints.

III.       Meaning of the Proposal[2]

            The parties agree that the disputed wording in
Section 8 has the following meaning and operation:  Under Section 8, employees
would be permitted to carry, in work areas, pagers and cellular phones that are
turned on but set to non-audible positions (either vibration or silence).  Record
of Post-Petition Conference (Record) at 1.  Management would retain the rights
to:  (1) determine which electronic devices affect equipment; (2) determine
which types of equipment are affected; (3) direct that an electronic device be
turned off when management has determined that it affects equipment; and (4)
determine the meaning of “close proximity” for purposes of ascertaining how far
away from equipment an employee must be before the employee could turn on an
electronic device.  Id. at 1-2.  The term “operational position(s)”
refers to the location where employees are working and are using headsets; this
may differ from facility to facility because of the variety of equipment in
use.  Id. at 2.  As there is no dispute over the meaning of Section 8,
we will adopt this meaning for purposes of our analysis.  See NATCA, 62
FLRA 337, 338 (2008).

            With respect to Section 12, the parties agree
that the section would have the following meaning and operation:  Section 12
would preclude management from unreasonably delaying employee reassignments
from one region to another based solely on the failure to transfer and/or
review the files listed in the proposal.  Id. at 2.  In this
connection, “OPF” means “official personnel file,” and “EPF” means a locally
maintained “employee personnel file.”  Id.  Under Section 12, if an
employee or the
Union believed that a reassignment was being delayed
unreasonably, then the issue could be resolved in arbitration, and an
arbitrator could direct that the employee be reassigned.  Id. 

            Also with respect to Section 12, the parties
agree that management would retain the right to determine the qualifications
needed for reassignment.  Id.  However, the Agency asserts that there
would be an exception under which management could be required to reassign an
employee before determining whether the employee’s medical and security
qualifications warrant such a reassignment.  Id.  In response, the Union
asserts that the term “unreasonable delay” is not intended to include
situations where management has not yet had the opportunity to determine
whether security reasons preclude a reassignment, and that Section 12 would not
preclude the reassignment of employees before their medical files have been
transferred and/or reviewed.  Id.  In addition, the Agency contends, and
the Union denies, that Section 12 would apply even if management has decided
not to fill a vacancy, and would require it to fill a position through
reassignment even if it has decided not to fill through reassignment.  Id.  As the Union’s explanation of the meaning is not inconsistent with the plain
wording of Section 12, we adopt it for purposes of determining Section 12’s
negotiability.  See, e.g., NATCA, 62 FLRA at 338 (where parties disputed
meaning of proposal, Authority adopted union’s interpretation because it was
consistent with proposal’s plain wording).

            With regard to Section 13, there is no dispute
that it would operate as follows:  After management has decided to reassign an
employee from one region to another, it could not decline to reassign the
employee based solely on the budget of one of the regions.  Report at 2.  For
example, if the region to which an employee is to be reassigned has
insufficient funds to pay the employee, then the Agency would be required to
transfer funds from the budget of the employee’s original region to the region
to which the employee is reassigned.  Id. at 2-3.  As there is no
dispute over the meaning of Section 8, we will adopt this meaning for purposes
of our analysis.  See NATCA, 62 FLRA at 338.

IV.       Preliminary Matter

The Union requests that the
Authority sever and consider separately the three sections of the proposal, and
that the Authority also sever the first sentence of Section 8 from the
remainder of Section 8.  The Agency opposes severance of Section 12 from
Section 13 because, according to the Agency, those sections are interrelated in
purpose and operation.
           
Under § 2424.22(c) of the
Authority’s Regulations, a union must support its severance request with “an
explanation of how each severed portion of the proposal . . . may stand alone,
and how such severed portion would operate.”  See, e.g., Tidewater Va. Fed. Employees Metal Trades Council, 58 FLRA 561, 562 (2003).  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. 
AFGE, Local 3354, 54 FLRA 807, 811 (1998).  Generally, the Authority
will grant a severance request if the request provides an explanation of how
each severed portion may stand alone and operate independently.  See NATCA,
61 FLRA 341, 343 (2005).

 The Union has demonstrated that
the individual sections of the proposal can stand alone and operate
independently.  Accordingly, we grant the Union’s request to sever the sections
of the proposal, and the first sentence of Section 8 from the rest of that
section.  See id.

V.        Section 8

            A.        Positions of the Parties

                        1.        Union

            The Union contends that Section 8 does not
affect the Agency’s broad discretion to determine what electronic devices are
banned from work areas.  In this regard, the Union asserts that Section 8
merely allows the use of pagers and cell phones, in a non-audible position,
when the Agency has determined that they do not pose a threat to the Agency’s
equipment.  Union Response (Response) at 2.  Additionally, the Union argues that Section 8 constitutes an appropriate arrangement.  In this connection,
the Union asserts that the proposal does not excessively interfere with management’s
right to determine internal security practices because it:  (1) benefits
employees by allowing them to have a record of who has called them, while not
being intrusive; (2) allows the use of electronic devices only where management
has determined that they do not interfere with the Agency’s equipment; and (3)
does not preclude management from disciplining an employee who uses a cell
phone or pager while in a work area.  Id. at 3-4.

                        2.        Agency

            The Agency contends that Section 8 conflicts with
its right to determine internal security practices under § 7106(a)(1) of the
Statute.  Agency Statement of Position (SOP) at 3.  The Agency maintains that
its mission of controlling air traffic requires a workplace free from devices
that could interfere with the Agency’s communication with the aircraft and that
could distract employees from their duties.  According to the Agency, wireless
devices can cause audio interference to air traffic controller headsets,
thereby possibly seriously affecting radio frequency transmissions, and they
also can interfere with the air traffic control communication systems that are
used to sequence and separate aircraft.  Further, the Agency argues that
permitting air traffic controllers to carry such devices while on duty would
preclude the Agency from ensuring that controllers will be able to concentrate
on the mission-critical job of separating aircraft without being distracted by
personal matters.  Id. at 3-4.  Finally, the Agency contends that the
proposal does not constitute an appropriate arrangement.  Id. at 4-5.

B.        Analysis
and Conclusions

                        1.         The
proposal affects management’s right to determine internal                                             security
practices.

The right to
determine internal security practices under § 7106(a)(1) of the Statute
includes the right to determine the policies and practices that are a part of
an agency's plan to secure or safeguard its personnel, physical property, or
operations against internal or external risks.  See, e.g., AFGE, Local 1920,
47 FLRA 340, 348 (1993) (Local 1920).  Where an agency shows a
link, or reasonable connection, between its objectives of securing or
safeguarding its personnel, property, or operations and the policy or practice
designed to implement that objective, a proposal that conflicts with the policy
or practice affects management's internal security rights under
§ 7106(a)(1) of the Statute.  See, e.g., NTEU, 55 FLRA 1174,
1186 (1999).  Upon finding such a link, the Authority "will not examine
the extent to which the practices adopted by management to achieve its security
objectives actually facilitate the accomplishment of those objectives."  AFSCME,
Locals 2910 & 2477
, 49 FLRA 834, 839 (1993).
We find that the Agency has established a
reasonable link between its objectives of securing or safeguarding its
personnel, property, or operations and its practice of prohibiting employees
from carrying wireless communication devices while on duty in operational
areas.  Specifically, we find that the Agency has established that prohibiting
employees from carrying and using such devices in operational areas may prevent
those devices from disrupting air traffic communications, and may decrease the
risk that the air traffic controllers will be distracted from their duties in
handling the safe and efficient sequencing and separation of aircraft.  See,
e.g.,
AFGE, Local 1030, 57 FLRA 901, 902 (2002) (proposals
permitting guards to use outside shelters equipped with various amenities
affected right to determine its internal security practices by increasing risk
that guards would be distracted from their duties).  As such, the proposal
affects management’s right to determine its internal security practices.  See
id.
 
            2.         The proposal is not an
appropriate arrangement.
            To determine whether a proposal
constitutes an appropriate arrangement within the meaning of § 7106(b)(3)
of the Statute, the Authority applies the test set forth in NAGE, Local
R14-87
, 21 FLRA 24, 31-33 (1986) (KANG).  Under this test, the
Authority initially determines whether the proposal is intended to be an
"arrangement" for employees adversely affected by the exercise of a
management right.  See id. at 31.  In this regard, the Authority
considers whether the proposal is “tailored” to compensate or benefit employees
who are adversely affected by the exercise of a management right.  See,
e.g., AFGE, Local 1687
, 52 FLRA 521, 523 (1996).  If the
proposal is an arrangement, then the Authority determines whether the
arrangement is appropriate or whether it is inappropriate because it
excessively interferes with management’s rights.  See KANG, 21 FLRA at
31.  In making this determination, the Authority balances the proposal’s
benefits to employees against its burdens on management.  See NTEU, 62 FLRA
267, 272 (2007) (Chairman Cabaniss dissenting in part).
            Applying that test, the Agency’s
current internal-security practice prohibits employees from carrying personal
wireless communication devices while on duty in an operational work area.  The
proposal would benefit employees by allowing them to carry such devices in such
areas under certain circumstances.  Accordingly, it is tailored to benefit
those employees who are adversely affected by management’s exercise of its
right to determine internal security.  Thus, it is an arrangement.  See,
e.g., AFGE Local 1156
, 63 FLRA 340, 342 (2009).
With regard to whether the
arrangement is appropriate, by permitting employees to carry personal wireless
communication devices (in an “on” but non-audible position) in operational
areas, employees would be able, when they checked the devices at appropriate
times, to determine who was attempting to contact them.  However, employees
could not “actual[ly] use” the devices while in the operational area.  Petition
at 3.  Thus, even under the proposal, employees could not review a device’s
call log until they leave the operational area.  This is something that
employees are already entitled to do.  As such, the only benefit to employees
articulated by the Union is either minimal or nonexistent. 

With regard to the burdens on
management, the Agency has identified several concerns associated with allowing
these devices in operational areas, even when the devices are set to
non-audible positions.  Specifically, the Agency cites audio interference to
air traffic controller headsets that “seriously affect[s] radio frequency
transmissions[;]” interference with “air traffic control communication systems
used in sequencing and separating aircraft[;]” and distraction to air traffic
controllers performing the mission-critical job of separating aircraft.  SOP at
3-4.  Thus, the Agency cites significant, specific concerns regarding how the
proposal would interfere with its internal security practice of prohibiting
such devices.  The burdens on management would be lessened to some extent by
the fact that, under the proposal, the Agency would retain the rights to
determine which devices affect Agency equipment and which equipment is
affected, and to direct that a device be turned off when management has
determined that it affects equipment.  Nevertheless, it is undisputed that the
proposal would impose burdens involving important security matters. 

Balancing the minimal or
nonexistent benefit that the proposal would have to employees against the
specified burdens on management, we find that the burdens on management
outweigh the purported benefit to employees.  Accordingly, on balance, we find
that the proposal excessively interferes with management’s right to determine
its internal security practices and, thus, is not an appropriate arrangement.  See, e.g.,
NTEU,
59 FLRA 844, 847-48
(2004) (proposal allowing employees to carry personal wireless communication
devices while on duty in inspection areas was not an appropriate arrangement).


For
the foregoing reasons, we find that Section 8 is outside the duty to bargain. 


VI.       Section 12

A.        Positions
of the Parties

1.         Union

The Union contends that Section 12 is intended to protect against substantial delays that are
administrative in nature, not delays that are related to the Agency’s
substantive review of medical or security documents.  Response at 4.  According
to the Union, Section 12 constitutes an appropriate arrangement for employees
who are adversely affected by management’s exercise of its rights to reassign
employees and to determine internal security practices with respect to
reviewing employees’ documents related to security clearances and medical
standards.  In this connection, the Union asserts that the proposal is intended
to benefit employees who have been accepted for reassignment but who are
awaiting the necessary paperwork, and that it applies where there is no reason
for the delay.  Id. at 4-6.  The Union also asserts that the burden on
management is slight because the Agency would “only need[] a rational reason
for the delay[]” and would retain broad discretion to properly review files
and, if necessary, cancel the reassignment.  Id. at 5.   

                        2.         Agency

            The Agency
asserts that Section 12 conflicts with management’s rights to assign employees
under § 7106(a)(2)(A) and to assign work under § 7106(a)(2)(B) of the Statute
because it would require management to implement reassignments within specified
periods of time, would subject the exercise of management rights to arbitral
scrutiny, and would place a substantive restriction on management’s rights. 
SOP at 7-9.  The Agency also asserts that Section 12 is not an appropriate
arrangement because it excessively interferes with the rights to assign
employees and assign work insofar as it would interfere with management’s right
to cancel planned reassignments.  Id. at 9-10.
           
            B.        Analysis and Conclusions

            Under the meaning of Section 12 as adopted
above, management would retain the right to determine employees’ medical and
security qualifications before they are reassigned, as well as the right to
cancel any reassignment.  In addition, Section 12 would not require management
to effectuate reassignments within specified periods; it would merely preclude
management from unreasonably delaying employee reassignments from one region to
another based solely on the failure to transfer and/or review the files listed
in the proposal.  As such, the Agency has not demonstrated that the proposal
places any substantive limitations on the exercise of management’s rights.  See,
e.g., AFGE, Local 1923
, 44 FLRA 1405, 1522 (1992) (proposal regarding
avoiding delay in providing employee reasonable accommodation negotiable); cf.
AFGE, AFL-CIO, Local 1738
, 27 FLRA 52, 59-60 (1987) (proposal
requiring reassignment to be made within 2 weeks interfered with management’s
right to determine when to assign work).  Further, the fact that the proposal
could submit management’s decisions to arbitral scrutiny does not provide a
basis for finding the proposal outside the duty to bargain.  See Patent
Office Prof’l Ass’n
, 47 FLRA 10, 19 (1993) (citing NFFE, Council of GSA
Locals
, 41 FLRA 728, 744 (1991)).  Accordingly, we find that the Agency has
not demonstrated that the proposal is outside the duty to bargain. 

VII.     Section 13

            A.        Positions
of the Parties

                        1.         Union

            The Union contends that Section 13 applies where the Agency already has selected employees for
reassignment, and that it mitigates the effects of management’s rights to
assign employees because it precludes the Agency from denying reassignments
based solely on artificial budgetary allocations across service areas. 
Response at 6.  The Union also contends that the proposal permits the Agency to
determine qualifications and to decide not to fill a vacancy.  Id. at 7.

                        2.         Agency

            The Agency
asserts that Section 13 conflicts with managements’ right to assign employees
under § 7106(a)(2)(A) of the Statute because it precludes it from denying
reassignments based solely on inter-service area budgetary constraints.  SOP at
11-12.  The Agency also asserts that Section 13 conflicts with management’s
right to assign work under § 7106(a)(2)(B) because it interferes with
management’s discretion to determine when work will be performed.  Id. at 12.  In addition, the Agency contends that Section 13 excessively interferes
with these management rights and, thus, does not constitute an appropriate
arrangement.  Id. at 13-14.

            B.        Analysis and Conclusions

Management’s right to assign
employees under § 7106(a)(2)(A) of the Statute includes the right to make
initial assignments to positions, to reassign employees to different positions,
and to make temporary assignments or details.  See United States
Dep’t of the Navy, Naval Undersea Warfare Ctr., Div. Newport, Newport, R.I.
,
63 FLRA 222, 225 (2009).  The right to assign employees includes the
right to refrain from assigning employees.  See United States DOJ, Fed. Bureau of Prisons, Metropolitan Detention Ctr., Guaynabo, Puerto
Rico
, 57 FLRA 331, 332 (2001) (Chairman Cabaniss dissenting).

Section 13 would require the Agency
to reassign employees when the Agency has decided, for budgetary reasons, that
it does not want to do so.  Thus, the proposal requires management to exercise
its right to assign employees and thereby affects that right. 
            The parties dispute whether the proposal constitutes an
appropriate arrangement under § 7106(b)(3) of the Statute.  Even assuming that
Section 13 constitutes an arrangement, we find that it is not appropriate
because it excessively interferes with management’s right to refrain from
assigning employees.  In this regard, the proposal would benefit employees by
preventing management from canceling reassignments that are based solely on
lack of funding.  However, by providing management no latitude in determining
whether reassignments should be canceled based on funding considerations, the
proposal imposes a significant burden on the Agency.  In these circumstances,
we find that the burdens on management outweigh the benefits to employees and
that, consequently, the proposal excessively interferes with management’s right
to assign employees.  Thus, the proposal is outside the duty to bargain.
VIII.    Order

            Sections 8 and 13
of the proposal are outside the duty to bargain, and we dismiss the petition
with regard to those sections.  Section 12 of the proposal is within the duty
to bargain, and the Agency shall, upon request, or as otherwise agreed to by
the parties, negotiate with the Union over that section.