[ v59 p25 ]
59 FLRA No. 6
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
DECISION AND ORDER
ON NEGOTIABILITY ISSUES
August 14, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of 8 proposals. The Agency filed a statement of position and the Union filed a response. [n1] The Agency did not file a reply to the Union's response.
For the reasons which follow, we find that the proposals are outside the duty to bargain. [n2]
The employer shall create a new form to be used by ASIs [Aviation Safety Inspectors] when making the determination of whether to delegate, or withhold delegation, from an applicant or company.
The form shall include a space for the ASI to document the reason why the ASI believes the delegation should be withheld, if that is the ASI's determination. Upon completion, the ASI shall provide the form to the supervisor.
If the supervisor decides that the delegation should not be withheld, the ASI shall not be required to delegate the function (inspection, airworthiness certification, etc.). Instead, the Supervisor's determination that the ASI's recommendation "does not support safer skies" [sic] shall be recorded on the form, and a copy of the form shall be forwarded to the employee, and the employee's Directorate Union Representative, recording the denial of the request to withhold delegation the supervisor shall then be responsible to issue the delegation. To the maximum extent practicable, the denial form shall include the aircraft make, model and serial number related to the delegation. Should the delegation denial not be for a specific aircraft, the applicant, STC number, or other traceability to the finished product shall be recorded and provided on the form.
The employer shall track all denial forms in a national database.
Each month the employer shall compare the accident and incident records of all aircraft, with registration numbers and models of aircraft which are part of the "denial" database. A report shall be generated of all such reviews.
Each quarter, the Union shall be provided with a list of accidents or incidents of the aircraft that [ v59 p26 ] have been involved in a "delegation denial" record, and a copy of that report.
Those accidents or incidents recorded in the "delegation denial" database shall be removed from the overall statistics the Employer uses to determine if the employer is meeting the Strategic Plan goals.
In the event the Outcome/Measures and goals of the employer are met, after removing from the database all aircraft, aircraft models, or parts are removed from the accident data, the employees shall receive the full pay increase they would have been entitled to had the employer not instituted the new policy of "ASI certification functions will be delegated to the fullest extent practical, but not to the extent an advisor's technical skills are jeopardized."
The Union's proposals stem from Agency proposed order 8130-2E. The Union contends that 8130-2E for the first time will "remove the ability of the supervising Aviation Safety Inspector to `withhold delegation, at any time, for any reason.'" Response at 5 (citing Public Law 103-272). In this respect, the Union argues that prior to this order, ASIs could withhold authorizing third party contractors to perform inspections of aircraft for a variety of reasons. However, because of the above order which reads, "ASI certification functions will be delegated to the fullest extent practical, but not to the extent an advisor's technical skills are jeopardized," the Union believes that ASIs may not withhold delegation where they previously might have. [n3] Response at 5-6.
Accordingly, the Union proposes to implement a process which would allow ASIs to formally note any objections they may have to delegating work while at the same time allowing the Agency to nonetheless delegate the work. Allowing such protest, the Union argues, would ultimately benefit the pay of the employees. In this respect, the Union claims that under its proposals, the Agency would be precluded from using such protested delegations in determining whether it has met its "safety" performance goals which, in turn, would benefit employees because a portion of employee pay will most likely be linked to such performance goals. Specifically, the Union notes that it has offered these proposals with the assumption that "the resulting system will incorporate Agency Goals and an `Organizational Success Increase' or OSI as a component of the new pay system." Response at 6.
IV. Meaning of the Proposals
The parties agree with the meaning of the proposals as set forth in the Post-Petition Conference Report. Those meanings are set forth below.
Proposal 1 requires the Agency to create a new form to be used by ASIs when making a determination whether or not to delegate inspection duties to an outside party (designee). Those inspections determine whether aircraft manufacturers are in compliance with Federal regulations. The Agency is not required by the proposal to consult with the Union when designing this form. However, the form must include all of the information called for in the proposals.
Proposal 2 requires that the form described in Proposal 1 include space for an ASI to document the reasons why he or she believes that the Agency should not delegate responsibility for an aircraft inspection to a designee, if the ASI determines that the delegation is inappropriate.
Proposal 3 provides that if the Agency, contrary to the determination of an ASI, determines delegation to be appropriate, then the Agency, and not the ASI, will be responsible for issuing the delegation of the inspection duties. Issuing a delegation involves writing a letter authorizing a designee to conduct an inspection. The form referenced in the second sentence of Proposal 3 is the same form described in Proposals 1 and 2.
Proposal 4 requires the Agency to develop a national database to track those situations where the Agency has delegated an inspection to a designee against the recommendation of the ASI. The Union indicated that the database could be located anywhere and could take any form that the Agency desired. The Union further indicated that the proposal would require the Agency to maintain the database as long as employees' pay could be affected by the information contained therein. The database would contain all of the information contained in the form called for in Proposals 1-3. [ v59 p27 ]
Proposal 5 calls for the Agency to compare the accident and incident records of the Agency and the National Transportation Safety Board with all of the aircraft and equipment contained in the database described in Proposal 4. Proposal 5 would require the Agency to compile a monthly report of that aircraft and equipment involved in accidents and incidents which also appear in the database described in Proposal 4. This report would indicate that the aircraft or equipment appeared in the database and in the accident and incident records and would not require further information.
Proposal 6 would require the Agency, on a quarterly basis, to provide the Union with a copy of the reports referenced in Proposal 5. Additionally, the proposal would require the Agency to provide the Union with the form required by Proposals 1-3 for the aircraft involved in any incident or accidents referenced in those reports, as well as the relevant final incident or accident reports.
Proposal 7 would require the Agency to remove those accidents and incidents involving aircraft which were inspected by designees over the objections of ASIs, from the final statistics used to determine if the Agency meets the accident reduction goals contained in its strategic plan.
With regard to Proposal 8, if the Agency's pay plan grants employees a 1 percent pay increase where the Agency has met its accident reduction goals, then Proposal 8 requires the Agency to grant its employees that pay raise after it has taken the steps called for by Proposal 7.
V. Positions of the Parties
A. Union's Position [n4]
The Union characterizes all of its proposals as appropriate arrangements given the Agency's implementation of FAA Order 8130-2E along with use of performance goals that, while outside the control of an employee, will impact an employee's pay. The Union contends that its proposals clarify "the means and methods used by the [Agency] to document, track, and identify those aircraft which FAA employees previously have either inspected personally, or made decisions on whether to delegate the inspection to a private individual." Petition at 4.
The Union states that the burden placed upon the Agency in adopting the above process will be minimal as it anticipates that only 88 forms will be produced a year based on "delegation withheld." Response at 12. The Union also argues that all 120 of the ASIs have computers and that the database to be created could be created with existing resources. Id. at 12-13. Moreover, it states that the proposal is limited in that all it does is "track the times a manager and an employee don't see eye to eye on the decision to delegate, and to take that data, and remove the affected aircraft from the data used by the Agency to determine if it is meeting it's safety goals." Id. at 10. It also contends that the proposal does not seek to discipline managers. Id at 12. Finally, the Union states:
The Union's proposals do not mandate that the pay increase [for meeting OSI "safety" goals] be given, only that the pay increase consideration for the OSI component of the goal of "safety" [one of six goals that form OSI] be adjusted to remove those aircraft that the ASI, in his experience, would not have had the inspection delegated to the person the Agency contracted out to. The Union is not trying to prevent the Agency from contracting the work out, it is merely trying to safeguard the employees it represents when the Agency exercises its right to contract work out.
Response at 15.
B. Agency's Position
The Agency argues that the proposals would affect its right to determine its mission, assign work and employees, discipline (proposal 5), and contract out (proposal 7). With respect to mission, the Agency argues that the proposals would affect its right to determine its mission by having employees "constantly filling out this form." Statement of Position at 5. It also claims that filling out such a form would "adversely affect the mission of the Agency, change the mission of the Agency and is not a modern or progressive work practice that would allow for the efficient accomplishment of the operations of the Government." Id. at 3. The Agency argues that the proposals would change its mission to one of "record keeping . . . for the sole purpose of documenting when a supervisor and employee disagreed with each other." Id. at 26. Finally, the Agency notes that the series of proposals would ultimately require it to remove data from the Union's proposed [ v59 p28 ] database in order to protect employees' future pay raises but, in so doing, it would require the Agency to set forth inaccurate data. Id. at 24.
Turning to both the assignment of work and employees, the Agency argues that the proposals would impact its ability to assign work to non-bargaining unit employees as non-bargaining unit employees would have to create and maintain this database. Id. at 5, 15. It argues that the proposals would also require supervisors to take certain actions depending on what employees write on this form. Id. at 5, 12. Moreover, it contends that other Agency employees would be required to perform an analysis each month from the database and produce a report. Id. at 19. Furthermore, it argues that removing data from the proposed database affects the assignment of work, and will essentially allow the "Union to determine what work will be performed and how it will be carried out." Id. at 29.
The Agency also argues that Proposal 5 will affect its right to discipline. Specifically, it states that "the proposal will facilitate the opportunity for Agency management to identify and remove managers whose decisions to over-rule employees result in higher than acceptable death rates[.]" Id. at 19.
Finally, the Agency argues that Proposal 7 affects its right to contract out because it would place "substantive limitations prescribing when and under what circumstances there will be contracting out." Id. at 26.
The Agency also argues that these proposals do not constitute appropriate arrangements because they are speculative and the burdens placed on it outweigh any benefit to the employees. In so arguing, the Agency contends that the proposals would "create additional work requirements on non bargaining unit employees, require additional administrative support, require additional computer support and storage for these documents." Id. at 26. Moreover, the Agency argues that the proposals are "speculative and hypothetical and [go] far beyond those of the bargaining unit [employees] whom the Union claims are adversely affected." Id. at 13. Finally, the Agency contends that the Union has failed to show "what if any adverse effects there are on bargaining unit employees from the implementation of this order." Id. at 12-13.
VI. Analysis and Conclusions
A. The Proposals Affect Management's Rights
Apart from the right to discipline, the Union does not dispute the Agency's contention that the proposals affect management's rights under § 7106(a). Where a union does not dispute an agency's contention that its proposals affect management's rights under § 7106(a), the Authority will find that the proposal affects those rights. See AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 451-52 (1999) petition for review denied mem., No. 99-1244 (D.C. Cir. 2000). Therefore, the negotiability of these proposals hinges on whether they constitute appropriate arrangements under § 7106(b)(3), as the Union argues.
B. The Proposals Are Not Arrangements
In determining whether a proposal is an appropriate arrangement, the Authority uses the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). 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 United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); AFGE, Local 1900, 51 FLRA 133, 141 (1995). The adverse effect, however, need not flow from the management right that a given proposal affects. See, e.g., NTEU, Chapter 243, 49 FLRA 176, 185 (1994) (Member Armendariz concurring in part and dissenting in part).
The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See Id. at 184. As the Authority has explained, relying on United States Dep't of the Interior, Minerals Mgmt. Serv., New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), § 7106(b)(3) brings within the duty to bargain proposals that provide a balm only to the hurts arising as a consequence of the management actions under § 7106 giving rise to a bargaining obligation. AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1319 (1996). See also NAGE, Local R14-23, 53 FLRA 1440, 1443 (1998).
To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address purely speculative or hypothetical concerns do not constitute arrangements. NTEU, 55 FLRA 1174, 1187 (1999).
If a proposal is determined to be an arrangement pertaining to the exercise of management's rights, then the Authority determines whether it excessively interferes with the relevant management right. The Authority reaches this determination by weighing the [ v59 p29 ] "competing practical needs of employees and managers." KANG, 21 FLRA at 31-32.
The Union argues that the proposals are intended as an arrangement for employees adversely affected by the Agency's implementation of FAA Order 8130-2E. The only benefit cited by the Union is the potential loss of pay resulting from the Agency not meeting certain safety goals.
Upon review of the record, we conclude that the adverse effect the Union wishes to mitigate is speculative. In this respect, the Union has not shown that the Agency's decision to require ASIs to delegate certification functions "to the fullest extent practical" will result in any increase in aviation accidents, which in turn would negatively affect the Agency's ability to meet its OSI safety goals. In fact, in the absence of record evidence to the contrary, it is plausible that delegations to contractors could improve overall safety statistics.
In addition, even if such delegation resulted in a decrease in overall safety statistics, nothing in the record establishes that the Agency would hold unit employees responsible for such a decrease and would lower their pay. Thus, the record provides little if any evidence to find that the Agency's change in its ASI delegation procedures will actually result in a loss of pay as argued by the Union. Accordingly, as the concern these proposals are intended to address is speculative, the proposals do not constitute an arrangement within the meaning of § 7106(b)(3) and, therefore, cannot be considered arrangements under § 7106(b)(3). [n5] See NTEU, 55 FLRA at 1187.
As the proposals do not constitute arrangements, there is no need to address whether the proposals excessively interfere with the exercise of management's rights.
The petition for review is dismissed.
Footnote # 1 for 59 FLRA No. 6 - Authority's Decision
The Union's response was untimely filed. However, we grant the Union's request to waive the expired time limit because extraordinary circumstances exist in this case. 5 C.F.R. § 2429.23(b). In particular, we note that a death in the Union representative's family and injuries sustained in a vehicle accident by the only other Union representative available prevented the submission of a timely response. We also note that the Agency did not oppose the Union's request.
Footnote # 2 for 59 FLRA No. 6 - Authority's Decision
The Union's request for a hearing is denied because nothing in the request or in the record raises a factual issue that needs to be resolved to determine the negotiability of the proposals at issue. See 5 C.F.R. § 2424.31 (a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact").
Footnote # 3 for 59 FLRA No. 6 - Authority's Decision
The Union states that before the proposed order, ASIs could withhold delegation in four general circumstances. They included: (1) where the designees do not appear to have the technical knowledge to perform the inspection; (2) where a disinterested party should perform the inspection; (3) where withholding designation is appropriate to send a message to a designee that its performance was under question; and (4) where there was evidence that a designee was receiving undue pressure from his employer to sign off on an inspection. Response at 4-5.
Footnote # 4 for 59 FLRA No. 6 - Authority's Decision
We deny the Union's request to sever the proposals. Under § 2424.22(c) and § 2424.25(d) of the Authority's Regulations, a party must explain how each severed portion of the proposal or provision may stand alone, and how such severed portion would operate. The Union does not present separate arguments as to each proposal and does not explain how each proposal could stand alone. As such, we address the proposals as an integrated whole.
Footnote # 5 for 59 FLRA No. 6 - Authority's Decision
Chairman Cabaniss would also find that even it these proposals were found to constitute an arrangement, the arrangement would still not be appropriate because it excessively interferes with the Agency's ability to determine its mission by precluding the Agency from using this data to determine whether it has met its strategic safety goals.