Federal Aviation Administration, Oakland ARTCC and Professional Air Traffic Controllers Organization 

 2 FLRA No. 4
 
 FEDERAL AVIATION ADMINISTRATION,
 OAKLAND ARTCC
 
 and
 
 PROFESSIONAL AIR TRAFFIC CONTROLLERS
 ORGANIZATION
 
                                            FLRC No. 78A-50
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    THE FINDINGS OF THE ARBITRATOR AND THE RECORD BEFORE THE AUTHORITY
 INDICATE THAT THIS DISPUTE AROSE WHEN THE OAKLAND AIR ROUTE TRAFFIC
 CONTROL CENTER (THE ACTIVITY) REALIGNED RADAR SECTOR AREAS OF
 SPECIALIZATION FOR AIR TRAFFIC CONTROLLERS.  A GRIEVANCE WAS FILED AND
 SUBMITTED TO ARBITRATION THAT DISPUTED THE MANNER IN WHICH THE ACTIVITY
 ASSIGNED CONTROLLERS TO THE RECONFIGURED AREAS OF SPECIALIZATION.  THE
 ISSUES TO BE RESOLVED BY THE ARBITRATOR WERE STIPULATED BY THE PARTIES
 AS FOLLOWS:
 
    WAS ARTICLE 24, SECTION 3 /1/ VIOLATED WHEN AREAS OF SPECIALIZATION
 WERE REALIGNED IN THE
 
    SPRING OF 1976?
 
    IF SO, WHAT IS THE APPROPRIATE REMEDY?
 
                          THE ARBITRATOR'S AWARD
 
    IN HIS DISCUSSION OF THIS MATTER, THE ARBITRATOR OBSERVED THAT THERE
 WAS NO DISPUTE THAT, AFTER THE REALIGNMENT, THE CONTROLLERS WERE NOT
 ASSIGNED TO THE RECONFIGURED AREAS SOLELY ON THE BASIS OF SENIORITY.
 INSTEAD, REASSIGNMENTS WERE BASED ONLY IN PART ON SENIORITY.  THEY WERE
 ALSO BASED IN PART ON EACH CONTROLLER'S PRIOR AREA OF SPECIALIZATION.
 ACCORDINGLY, THE ARBITRATOR CONCLUDED THAT IN ASSIGNING CONTROLLERS TO
 THE RECONFIGURED AREAS OF SPECIALIZATION, THE ACTIVITY VIOLATED ARTICLE
 24, SECTION 3 OF THE AGREEMENT.  AS A REMEDY THE ARBITRATOR ORDERED
 "THAT THE PROCEDURES OF ARTICLE 24, SECTION 3 BE FOLLOWED AND TOTAL
 CAA/FAA SERVICE BE EMPLOYED RATHER THAN THE METHOD UTILIZED IN THIS
 CASE." CONSEQUENTLY, THE ARBITRATOR ALSO ORDERED THAT THE GRIEVANT BE
 ALLOWED "TO BID WHEREVER HIS SENIORITY TAKES HIM."
 
                              AGENCY'S APPEAL
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  PURSUANT TO SECTION 2411.32 OF THE
 ITS RULES OF PROCEDURE, THE COUNCIL ACCEPTED THE PETITION FOR REVIEW
 WHICH TOOK EXCEPTION TO THE AWARD ON THE GROUND THAT IT VIOLATES SECTION
 12(B)(2) OF THE ORDER.  /2/ IN ITS ACCEPTANCE LETTER THE COUNCIL ALSO
 DIRECTED THE PARTIES TO ADDRESS RELEVANT COUNCIL PRECEDENT RELATING TO
 THE INTERPRETATION AND APPLICATION OF SECTION 11(B) OF THE ORDER--
 PARTICULARLY THAT PRECEDENT CONCERNING JOB CONTENT-- AS IT MIGHT RELATE
 TO THE CIRCUMSTANCES OF THIS CASE.  BOTH PARTIES FILED POST-ACCEPTANCE
 BRIEFS.  THE CASE WAS PENDING BEFORE THE COUNCIL ON DECEMBER 31, 1978.
 
                                  OPINION
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY (44 FED.REG. 44741) AND SECTION 7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215),
 THE COUNCIL'S RULES OF PROCEDURE REMAIN OPERATIVE WITH RESPECT TO THIS
 CASE EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
 WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    SECTION 2411.37(A) OF THE RULES AS SO AMENDED PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED
 
    ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
 REGULATION, OR THE ORDER,
 
    OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
 SECTOR LABOR-MANAGEMENT
 
    RELATIONS.
 
    AS PREVIOUSLY STATED, THE FEDERAL LABOR RELATIONS COUNCIL ACCEPTED
 THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WHICH TOOK
 EXCEPTION TO THE AWARD ON THE GROUND THAT THE AWARD VIOLATES SECTION
 12(B)(2) OF THE ORDER.  /3/ THUS, THE ISSUE THAT WAS PENDING BEFORE THE
 COUNCIL IN THIS CASE AND THAT IS NOW TO BE DECIDED BY THE AUTHORITY IS
 WHETHER THE ARBITRATOR'S AWARD VIOLATES SECTION 12(B)(2) OF THE ORDER.
 
    THE DISPUTE BEFORE THE ARBITRATOR IN THIS CASE INVOLVED THE
 ACTIVITY'S REALIGNMENT OF RADAR SECTOR AREAS OF SPECIALIZATION FOR
 CONTROLLERS.  THE ACTIVITY RESTRICTED ITS SOLICITATION OF CONTROLLERS
 FOR ASSIGNMENT TO EACH RECONFIGURED AREA TO THOSE CONTROLLERS WHOSE
 PRIOR AREA OF SPECIALIZATION INCLUDED ALL OR ANY PART OF THE
 RECONFIGURED AREA.  IT WAS ONLY AMONG THESE CONTROLLERS THAT SENIORITY
 WAS CONSIDERED IN MAKING FINAL ASSIGNMENTS.  IN CHALLENGING THE AWARD AS
 VIOLATIVE OF SECTION 12(B)(2) OF THE ORDER, THE AGENCY PRINCIPALLY
 ARGUES THAT THE ARBITRATOR'S AWARD INFRINGES ON MANAGEMENT'S AUTHORITY
 UNDER SECTION 12(B)(2) TO ASSIGN CONTROLLERS TO POSITIONS WITHIN THE
 AGENCY.  FOR THE FOLLOWING REASONS WE FIND THAT THE ARBITRATOR'S AWARD
 IN THIS CASE DOES NOT VIOLATE SECTION 12(B)(2) OF THE ORDER.
 
    IN THIS CASE THE ARBITRATOR ORDERED IN HIS AWARD THAT THE ACTIVITY
 ABIDE BY ARTICLE 24, SECTION 3 OF ITS NEGOTIATED AGREEMENT /4/ WHICH
 PRESCRIBES THE MANNER IN WHICH CONTROLLERS WILL BE SOLICITED FOR
 ASSIGNMENT TO AREAS OF SPECIALIZATION AFTER A REALIGNMENT.  HE
 INTERPRETED THAT NEGOTIATED PROVISION AS OBLIGATING THE AGENCY TO MAKE
 ASSIGNMENTS TO THE REALIGNED AREAS ON THE BASIS OF SENIORITY AMONG ALL
 CONTROLLERS CONCERNED RATHER THAN THE ACTIVITY'S METHOD OF LIMITING
 SENIORITY CONSIDERATION TO ONLY THOSE CONTROLLERS WHOSE PRIOR AREA OF
 SPECIALIZATION INCLUDED ALL OR PART OF THE PARTICULAR RECONFIGURED AREA.
  THE AGENCY HAS NOT DEMONSTRATED THAT SUCH AN AWARD VIOLATES SECTION
 12(B)(2) OF THE ORDER.  THAT IS, THE AGENCY HAS NOT SHOWN THAT THE
 ASSIGNMENT IN THIS CASE OF CONTROLLERS FROM THE PRIOR AREAS OF
 SPECIALIZATION TO THE REALIGNED AREAS OF SPECIALIZATION INVOLVED AN
 ASSIGNMENT FROM ONE POSITION WITHIN THE AGENCY TO ANOTHER POSITION
 WITHIN THE AGENCY, AND THAT THE ARBITRATOR'S AWARD THUS INFRINGES UPON
 THE ACTIVITY'S 12(B)(2) RIGHT TO ASSIGN EMPLOYEES TO POSITIONS WITHIN
 THE AGENCY.  THE AGENCY DOES NOT DEMONSTRATE THAT IN THIS CASE THE
 CONTROLLERS WERE ASSIGNED FROM ONE SEPARATE AND DISTINCT POSITION WITHIN
 THE AGENCY TO ANOTHER POSITION WITHIN THE AGENCY.  THE AGENCY SUBMITTED
 NO EVIDENCE TO INDICATE THE CREATION OF NEW CONTROLLER POSITIONS IN
 CONJUNCTION WITH THE REALIGNMENT.  THE AGENCY DID NOT SHOW THAT THE
 EXISTING POSITION DESCRIPTION TO WHICH THE EMPLOYEES WERE ASSIGNED WERE
 CHANGED, OR THAT NEW POSITION DESCRIPTIONS WERE PREPARED.
 
    INSTEAD, IT WOULD APPEAR THAT THE ARBITRATOR'S AWARD IN THIS CASE
 DIRECTS THE AGENCY TO ABIDE BY THE PROVISIONS OF ITS COLLECTIVE
 BARGAINING AGREEMENT FOLLOWING A CHANGE IN THE DUTIES OF A SINGLE,
 DISTINCT POSITION WITHIN THE AGENCY.  IT IS WELL ESTABLISHED UNDER THE
 ORDER THAT MATTERS CONCERNING THE DUTIES OF A GIVEN POSITION, THAT IS,
 THE JOB CONTENT OF THAT POSITION, ARE NOT WITHIN THE AMBIT OF SECTION
 12(B) OF THE ORDER.  RATHER, SUCH MATTERS ARE WITHIN THE MEANING OF THE
 PHRASES AGENCY "ORGANIZATION" AND "NUMBERS, TYPES, AND GRADES OF
 POSITIONS OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT
 OR TOUR OF DUTY" IN SECTION 11(B).  /5/ IN SUCH CIRCUMSTANCES IT IS WELL
 ESTABLISHED UNDER THE ORDER THAT WHILE AN AGENCY IS UNDER NO OBLIGATION
 TO NEGOTIATE ABOUT A MATTER WITHIN THE AMBIT OF SECTION 11(B), ONCE
 INCLUDED IN A NEGOTIATED AGREEMENT, AND NOT OTHERWISE INCONSISTENT WITH
 LAW, REGULATION, OR THE ORDER, A NEGOTIATED PROVISION CONCERNING JOB
 CONTENT OF A PARTICULAR POSITION MAY BE ENFORCED THROUGH ARBITRATION.
 /6/ ACCORDINGLY, THE ARBITRATOR'S AWARD IN THIS CASE DOES NOT VIOLATE
 SECTION 12(B)(2) OF THE ORDER.
 
    THE AGENCY'S ASSERTIONS CONCERNING THE ARBITRATOR'S FAILURE TO
 ADDRESS THE TERM "QUALIFIED EMPLOYEES" IN ARTICLE 24, SECTION 3, WHICH
 THE ACTIVITY HAD CONSTRUED AS LIMITING THE ASSIGNMENT OF CONTROLLERS
 ONLY TO RECONFIGURED AREAS INCLUDING ALL OR PART OF THEIR FORMER AREAS
 OF SPECIALIZATION, DO NOT COMPEL A DIFFERENT CONCLUSION.  THE AGENCY
 ARGUES THAT IF CONTROLLERS WERE REASSIGNED TO AREAS WITH WHICH THEY WERE
 UNFAMILIAR AND AS TO WHICH THEY WERE UNCERTIFIED IN SPECIALIZED
 PROCEDURES, SENIORITY WOULD BE PREVAILING OVER QUALIFICATIONS, AND
 CONSEQUENTLY AIR SAFETY WOULD BE COMPROMISED AND DISRUPTED.  HOWEVER,
 NOTHING IN THE ARBITRATOR'S AWARD DIRECTS THE ACTIVITY TO TAKE ANY
 ACTION THAT WOULD COMPROMISE OR DISRUPT AIR SAFETY.  FOR INSTANCE,
 NOTHING IN THE AWARD PRECLUDES A PERIOD FOR FAMILIARIZATION AND
 CERTIFICATION OF CONTROLLERS IN CONJUNCTION WITH ITS IMPLEMENTATION, AND
 NOTHING IN THE AWARD PRECLUDES THE ACTIVITY FROM DELAYING ITS
 IMPLEMENTATION WITH RESPECT TO ANY CONTROLLER UNTIL THAT CONTROLLER HAS
 BEEN CERTIFIED AS TO A PARTICULAR REALIGNED AREA OF SPECIALIZATION.
 
                                CONCLUSION
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
 AMENDED RULES, THE ARBITRATOR'S AWARD IS SUSTAINED AND THE STAY OF THE
 AWARD IS VACATED.  /7/
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 2, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /8/
 
    /1/ ARTICLE 24, REALIGNMENT OF WORK FORCE, OF THE PARTIES' NEGOTIATED
 AGREEMENT PROVIDES, IN PART:
 
    SECTION 3.  IN FACILITIES WHEN AREAS OF SPECIALIZATION ARE REALIGNED
 OR ESTABLISHED, OR
 
    STAFFING IMBALANCES AT THE FULL PERFORMANCE LEVEL NEED TO BE
 RESOLVED, VOLUNTEERS WILL BE
 
    SOLICITED AND QUALIFIED EMPLOYEES SELECTED ON THE BASIS OF TOTAL
 CAA/FAA SERVICE BEFORE FINAL
 
    ASSIGNMENTS ARE MADE BY THE EMPLOYER.
 
    /2/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED, PURSUANT TO SECTION
 2411.47(F) OF ITS RULES OF PROCEDURE, A STAY OF THE ARBITRATOR'S AWARD.
 
    /3/ SECTION 12(B)(2) OF THE ORDER PROVIDES, IN PART:
 
    SEC. 12.  BASIC PROVISIONS OF AGREEMENTS.  EACH AGREEMENT BETWEEN AN
 AGENCY AND A LABOR
 
    ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
 
   .          .          .          .
 
 
    (B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
 ACCORDANCE WITH APPLICABLE LAWS
 
    AND REGULATIONS--
 
   .          .          .          .
 
 
    (2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
 POSITIONS WITHIN THE AGENCY
 
    . . . (.)
 
    /4/ ARTICLE 24, SECTION 3 OF THE PARTIES' AGREEMENT IS SET FORTH IN
 NOTE 1, SUPRA.
 
    /5/ DEPARTMENT OF THE ARMY, U.S. ARMY, ABERDEEN PROVING GROUND,
 MARYLAND AND INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
 WORKERS, AFL-CIO, LODGE 2424 (GOTTLIEB, ARBITRATOR), 5 FLRC 852, 857 &
 N.10 (FLRC NO. 77A-27 (AUG. 31, 1977), REPORT NO. 137).
 
    /6/ INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL
 640 AND PARKER-DAVIS PROJECT OFFICE, BUREAU OF RECLAMATION, UNITED
 STATES DEPARTMENT OF THE INTERIOR (IRWIN, ARBITRATOR), 5 FLRC 562 (FLRC
 NO. 76A-44 (JULY 12, 1977), REPORT NO. 130).
 
    /7/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
    /8/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.