Professional Air Traffic Controllers Organization (Union) and Department of Transportation, Federal Aviation Administration (Agency) 

 4 FLRA No. 36
 
 PROFESSIONAL AIR TRAFFIC CONTROLLERS
 ORGANIZATION, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF TRANSPORTATION,
 FEDERAL AVIATION ADMINISTRATION
 Agency
 
                                            Case No. O-NG-112
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                             UNION PROPOSAL I
 
                          ARTICLE 21, PROMOTIONS
 
    SECTION 1.  QUALIFIED EMPLOYEES SHALL BE PERMITTED TO BID ON
 VACANCIES TWO GRADES OR HIGHER
 
    THAN THEIR PRESENT GRADE.  THERE SHALL BE NO TIME-IN-GRADE
 REQUIREMENTS OR RESTRICTIONS.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE REQUIREMENTS CONTAINED IN 5 CFR 300.601
 ET SEQ. ISSUED BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM) ARE
 GOVERNMENT-WIDE REGULATIONS UNDER SECTION 7117(A)(1) OF THE STATUTE, /1/
 AND IF SO, WHETHER UNION PROPOSAL I IS INCONSISTENT WITH THOSE
 REGULATIONS, AS ALLEGED BY THE AGENCY.  5 CFR 300.601 ET SEQ. REQUIRES
 THAT, FOR MANY ADVANCEMENTS FROM A COMPETITIVE OR EXCEPTED POSITION TO A
 COMPETITIVE POSITION, THE EMPLOYEE MUST HAVE SERVED ONE YEAR IN A
 POSITION IN THE NEXT LOWER GRADE FOR THAT LINE OF WORK.  THIS REGULATION
 IS PRESENTLY IN EFFECT AND APPLIES TO EMPLOYEES AFFECTED BY THIS UNION
 PROPOSAL.  /2/
 
                                  OPINION
 
    CONCLUSION:  THE TIME-IN-GRADE REQUIREMENTS ISSUED BY OPM AND
 CONTAINED IN 5 CFR 300.601 ET SEQ. ARE GOVERNMENT-WIDE REGULATIONS
 WITHIN THE MEANING OF SECTION 7117(A)(1) OF THE STATUTE AND UNION
 PROPOSAL I IS INCONSISTENT WITH THOSE REGULATIONS.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.10, AS AMENDED BY 45 FED.REG. 48,575(1980)), THE DUTY TO
 BARGAIN DOES NOT EXTEND TO UNION PROPOSAL I AND IT IS ORDERED THAT THE
 PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL I
 BE DISMISSED.
 
    REASONS:  THE INITIAL QUESTION IS WHETHER THE APPLICABLE
 TIME-IN-GRADE REQUIREMENTS ISSUED BY OPM CONSTITUTE A "GOVERNMENT-WIDE
 RULE OR REGULATION" WITHIN THE MEANING OF THE STATUTE.  THE AUTHORITY
 CONSIDERED THE MEANING OF THE PHRASE "GOVERNMENT-WIDE RULE OR
 REGULATION" IN NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL
 REVENUE SERVICE, NEW ORLEANS DISTRICT, 3 FLRA NO. 118(1980) AND
 DETERMINED THAT THE PROVISIONS OF THE FEDERAL PROPERTY MANAGEMENT
 REGULATIONS IN THAT CASE WERE GENERALLY APPLICABLE THROUGHOUT THE
 FEDERAL GOVERNMENT AND, AS SUCH, CONSTITUTED GOVERNMENT-WIDE
 REGULATIONS
 WITHIN THE MEANING OF SECTION 7117.
 
    THE REGULATION AT ISSUE HEREIN IS CODIFIED AT TITLE 5 OF THE CODE OF
 FEDERAL REGULATIONS AS A PERSONNEL MANAGEMENT REGULATION PUBLISHED BY
 OPM.  THIS REGULATION IS BINDING ON MANY COMPETITIVE ADVANCEMENTS FOR
 GENERAL SCHEDULE EMPLOYEES WITHIN THE EXECUTIVE BRANCH.  (5 CFR 300.601)
 IN THIS MANNER, THE REGULATION IS GENERALLY APPLICABLE TO THE FEDERAL
 CIVILIAN WORK FORCE AS A WHOLE, THOUGH NOT, OF COURSE, TO EVERY FEDERAL
 EMPLOYEE.  IT IS TYPICAL OF THE REGULATIONS ISSUED BY OPM AND WOULD
 APPEAR TO BE THE KIND OF REGULATION CONTEMPLATED AS A GOVERNMENT-WIDE
 REGULATION BY THE REFERENCE TO THE OPM IN THE HOUSE COMMITTEE REPORT, AS
 CITED IN THE NEW ORLEANS DISTRICT DECISION, SUPRA.  THEREFORE, THE
 REGULATION ASSERTED BY THE AGENCY AS A BAR TO NEGOTIATION OF UNION
 PROPOSAL I IS A GOVERNMENT-WIDE REGULATION WITHIN THE MEANING OF SECTION
 7117(A).
 
    THE QUESTION THEN BECOMES WHETHER UNION PROPOSAL I IS INCONSISTENT
 WITH THE CITED REGULATION.  AS MENTIONED BEFORE, 5 CFR 300.601 ET SEQ.
 REQUIRES THAT, FOR MANY ADVANCEMENTS FROM A COMPETITIVE OR EXCEPTED
 POSITION TO A COMPETITIVE POSITION, THE EMPLOYEE MUST HAVE SERVED ONE
 YEAR IN A POSITION IN THE NEXT LOWER GRADE FOR THAT LINE OF WORK.  SINCE
 UNION PROPOSAL I WOULD NEGATE THE TIME-IN-GRADE REGULATIONS BY EXPRESSLY
 MAKING THEM INAPPLICABLE, IT IS INCONSISTENT WITH THOSE REGULATIONS.
 ACCORDINGLY, UNION PROPOSAL I IS NOT WITHIN THE DUTY TO BARGAIN UNDER
 SECTION 7117(A)(1) OF THE STATUTE.
 
                             UNION PROPOSAL II
 
                         ARTICLE 22, COMPENSATION
 
    SECTION 3.  A FULL PERFORMANCE LEVEL EMPLOYEE WHO IS PROMOTED TO A
 HIGHER GRADE POSITION AT
 
    A DIFFERENT FACILITY WILL BE PROMOTED WHEN HE ENTERS ON DUTY IN THE
 NEW POSITION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL II IS INCONSISTENT WITH THE
 TIME-IN-GRADE REGULATIONS CONTAINED IN 5 CFR 300.601 ET SEQ.  /3/ ,
 WHICH WERE FOUND TO BE GOVERNMENT-WIDE REGULATIONS IN THE DISCUSSION OF
 UNION PROPOSAL I ABOVE, AND HENCE NOT WITHIN THE DUTY TO BARGAIN UNDER
 SECTION 7117(A)(1) OF THE STATUTE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  UNION PROPOSAL II IS NOT INCONSISTENT WITH THE
 GOVERNMENT-WIDE REGULATIONS CONTAINED IN 5 CFR 300.601 ET SEQ., AND IS
 WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER SECTION 7117(A)(1) OF THE
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 FED.REG.
 48,575(1980)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL
 II.  /4/
 
    REASONS:  UNION PROPOSAL II REQUIRES THAT WHEN A FULL PERFORMANCE
 LEVEL EMPLOYEE IS PROMOTED TO A HIGHER GRADE POSITION AT A DIFFERENT
 FACILITY, THE EMPLOYEE WILL BE PROMOTED WHEN HE ENTERS ON DUTY IN THE
 NEW POSITION.  THE PROPOSAL DOES NOT MAKE ANY REFERENCE TO TIME-IN-GRADE
 REQUIREMENTS.  THE AGENCY CONTENDS THAT UNION PROPOSAL II IS
 NONNEGOTIABLE BECAUSE IT DOES NOT EXPLICITLY REQUIRE THAT ANY PROMOTION
 IS CONTINGENT UPON THE EMPLOYEE'S HAVING MET APPLICABLE TIME-IN-GRADE
 REQUIREMENTS.  THE AGENCY'S POSITION CANNOT BE SUSTAINED.  THE LANGUAGE
 OF UNION PROPOSAL II WOULD NOT REQUIRE THE AGENCY TO SELECT AN EMPLOYEE
 FOR PROMOTION IN A MANNER WHICH WOULD CONFLICT WITH THE TIME-IN-GRADE
 REQUIREMENTS CONTAINED IN 5 CFR 300.601 ET SEQ. OR ANY OTHER LEGAL
 REQUIREMENTS WHICH MAY APPLY.  INSOFAR AS THE PROPOSAL IS SILENT WITH
 RESPECT TO THESE REQUIREMENTS, AND THE RECORD DOES NOT INDICATE THAT THE
 UNION INTENDS THAT THE PROPOSAL BE APPLIED IN ANY MANNER INCONSISTENT
 WITH LAW AND REGULATION, THE PROPOSAL IS NOT INCONSISTENT WITH THE
 REGULATION CITED BY THE AGENCY HERE.  IN ANY EVENT, THE STATUTE, AS
 APPLIED BY THE AUTHORITY, AND THE APPLICABLE REGULATION WOULD GOVERN THE
 MATTERS NOT ADDRESSED BY THE PROPOSAL. /5/ ACCORDINGLY, UNION PROPOSAL
 II IS WITHIN THE DUTY TO BARGAIN.
 
                            UNION PROPOSAL III
 
                         ARTICLE 22, COMPENSATION
 
    SECTION 5.  A FACILITY RECLASSIFICATION SHALL BE EFFECTED ON THE
 BEGINNING OF THE FIRST
 
    FULL PAY PERIOD AFTER THE DATE THE FACILITY MEETS THE TRAFFIC
 COUNT/COMPLEXITY FOR
 
    RECLASSIFICATION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL III IS INCONSISTENT WITH
 SUBCHAPTER 5-4 OF FEDERAL PERSONNEL MANUAL (FPM) CHAPTER 511 AND
 THEREFORE NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION 7117(A)(1) OF THE
 STATUTE, AS ALLEGED BY THE AGENCY.  SUBCHAPTER 5-4 OF FPM CHAPTER 511
 PROVIDES, IN PERTINENT PART:
 
    AGENCY CONSULTATION ON CLASSIFICATION ACTIONS AFFECTING LARGE BLOCKS
 OF POSITIONS
 
    A.  PRIOR CONSULTATION ON CLASSIFICATION ACTIONS.  AGENCIES ARE
 REQUIRED TO CONSULT WITH
 
    (OPM) ON PROPOSED CLASSIFICATION ACTIONS AFFECTING A SIGNIFICANT
 NUMBER OF POSITIONS BEFORE
 
    COMMITMENTS ARE MADE AND DECISIONS ANNOUNCED TO EMPLOYEES.  THIS
 CONSULTATION IS REQUIRED WHEN
 
    A CLASSIFICATION DECISION CHANGES 20 OR MORE SUBSTANTIALLY SIMILAR
 POSITIONS FROM ONE GRADE
 
    LEVEL TO ANOTHER . . .
 
                                  OPINION
 
    CONCLUSION:  UNION PROPOSAL III IS NOT INCONSISTENT WITH SUBCHAPTER
 5-4 OF FPM CHAPTER 511 AND IS WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER
 SECTION 7117(A)(1) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS
 AMENDED BY 45 FED.REG. 48,575(1980)), IT IS ORDERED THAT THE AGENCY
 SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING UNION PROPOSAL III. /6/
 
    REASONS:  ASSUMING ARGUENDO THAT SUBCHAPTER 5-4 OF FPM CHAPTER 511 IS
 A GOVERNMENT-WIDE RULE OR REGULATION WITHIN THE MEANING OF SECTION
 7117(A)(1) OF THE STATUTE, NOTHING IN UNION PROPOSAL III IS INCONSISTENT
 WITH THIS SUBCHAPTER.  SUBCHAPTER 5-4 REQUIRES AGENCIES TO CONSULT WITH
 OPM PRIOR TO EFFECTING A RECLASSIFICATION ACTION AFFECTING TWENTY OR
 MORE SIMILAR POSITIONS.  HOWEVER, NOTHING IN THE SUBCHAPTER REQUIRES
 SUCH CONSULTATION MUST OCCUR AT A SPECIFIC TIME PRIOR TO THE
 RECLASSIFICATION ACTION.  THUS, IT WOULD APPEAR THAT THE REQUIREMENT TO
 CONSULT UNDER THE SUBCHAPTER COULD BE MET BY SUBMITTING TO OPM A PLAN TO
 RECLASSIFY POSITIONS WHEN IT APPEARS THAT SPECIFIED TRAFFIC COUNT AND
 COMPLEXITY LEVELS WILL BE REACHED IN THE NEAR FUTURE.  UNION PROPOSAL
 III SEEKS ONLY TO ESTABLISH THE TIMING OF A FACILITY RECLASSIFICATION
 ACTION.  THERE IS NO INDICATION THAT IT IS INTENDED TO NEGATE THE
 REQUIREMENT FOR SUCH PRIOR CONSULTATION WITH OPM.  ACCORDINGLY, THE
 UNION PROPOSAL III IS NOT INCONSISTENT WITH SUBCHAPTER 5-4 OF FPM
 CHAPTER 511, AS ALLEGED BY THE AGENCY, AND IS WITHIN THE AGENCY'S DUTY
 TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 19, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED:
 
    MR. DENNIS M. REARDON
 
    DIRECTOR OF OPERATIONS
 
    PROFESSIONAL AIR TRAFFIC
 
    CONTROLLERS ORGANIZATION, AFL-CIO
 
    444 NORTH CAPITOL STREET, N.W.
 
    SUITE 820
 
    WASHINGTON, D.C. 20001
 
    MS. LINDA HELLER KAMM
 
    ACTING DEPUTY SECRETARY
 
    DEPARTMENT OF TRANSPORTATION
 
    WASHINGTON, D.C. 20590
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    /2/ ALTHOUGH THE UNION HAS NOT RAISED THE ISSUE IN THIS CASE, THE
 AUTHORITY TAKES NOTE OF THE FACT THAT THE VALIDITY OF OPM'S
 TIME-IN-GRADE REGULATION IS PRESENTLY SUBJECT TO LITIGATION BEFORE THE
 MERIT SYSTEMS PROTECTION BOARD.  RICHARD B. KNOWLDEN, JR. V.  OFFICE OF
 PERSONNEL MANAGEMENT, MSPB CASE NO. NY 300A09002.
 
    /3/ THE SUBSTANCE OF THESE REGULATIONS WAS DISCUSSED IN CONNECTION
 WITH UNION PROPOSAL I, SUPRA.
 
    /4/ IN SO DECIDING THAT UNION PROPOSAL II IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /5/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO.
 120(1980) AT 4 OF DECISION.
 
    /6/ IN SO DECIDING THAT UNION PROPOSAL III IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.