National Air Traffic Controllers Association, AFL-CIO (Union) and United States Department of Transportation, Federal Aviation Administration, Washington, D.C. (Agency)

[ v62 p174 ]

62 FLRA No. 43

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, AFL-CIO
(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
(Agency)

0-NG-2819

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

October 4, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members  [n1] 

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 concerns the negotiability of 8 proposals. [n2]  The Agency filed a statement of position and the Union filed a response.

      For the reasons that follow, we find that Proposal 1 is within the duty to bargain; Proposals 6 and 7 are outside the duty to bargain because Proposal 6 is "covered by" the parties' national level collective bargaining agreement (agreement); Proposals 8 and 9 are outside the duty to bargain because Proposal 8 excessively interferes with management's right to discipline under § 7106(a)(2)(A) of the Statute. The duty to bargain does not extend to Proposals 10 and 11 because Proposal 10 concerns matters that are bargainable at the election of the Agency. The petition for review as to Proposal 13 is dismissed because the Agency has not raised a negotiability dispute with respect to that proposal.

II.     Background

      The disputed proposals in this case are part of a proposed Memorandum of Understanding (MOU) offered by the Union during national level bargaining in response to the Agency's implementation of the Enhanced Back-Up Surveillance System (EBUS). EBUS is software that will replace the Agency's current back-up radar system, known as EDARC (Enhanced Direct Access Radar Channel). The Union states, and the Agency does not dispute, that EBUS will provide air traffic controllers who use the back-up system with "a variety of new functionalities, including conflict alerts, minimum safe altitude warnings, and intruder warnings." Petition for Review (Petition) at 1. The current system does not provide "the same level of computer-generated alerts and warnings" and controllers rely "upon manually[-]entered data for much of their decision-making." Id. Implementation of EBUS will be Agency-wide, beginning with two sites and expanding to others.

III.      Preliminary Matter: The Proposals Will be Grouped as Requested by the Union

      In its discussion of whether its proposals should be severed, the Union requests that Proposals 6 and 7, 8 and 9, and 10 and 11 be considered together because they concern the same subject matter.  [n3]  This request does not involve "severance" as that term is defined in § 2424.2(h) of the Authority's Regulations, 5 C.F.R. § 2424.2(h), because the Union is not requesting that proposals be divided into separate parts. However, because the Agency does not object to the Union's request, we will consider those sets of proposals together and not separately. See AFGE, Local 12, 60 FLRA 533, 535 n.2 (2004) (AFGE, Local 12); AFGE, Local 1030, 57 FLRA 901, 901 n.1 (2002) (AFGE, Local 1030). As a result, if one of the proposals [ v62 p175 ] is nonnegotiable, we will find that both proposals in a given pair are outside the duty to bargain. Id.

IV.       Proposal 1

The Union, at the facility level, may designate an EBUS Site Representative. The NATCA EBUS Site Representative shall have the same, timely access to all data as the Agency. The NATCA EBUS Site Representative will provide technical expertise and identify potential impacts on BUEs, as well as serving as the Union representative to the Agency at the local level. The EBUS Site Representative will be provided a reasonable amount of official time to be determined by the Parties at the local level to attend meetings and to carry out the duties under this Section. The Facility EBUS Lead will participate in any briefings given to bargaining unit employees ("BUE") concerning the testing, training and implementation of EBUS.

A.     Meaning of the Proposal

      The Authority has consistently held that it will adopt the Union's interpretation of its proposals where that interpretation is consistent with the wording of the proposals. See Nat'l Ass'n of Indep. Labor, 62 FLRA 1, 2 (2007); NEA, OEA, Laurel Bay Teachers Ass'n, 51 FLRA 733, 737-38 (1996) (Laurel Bay). Here, the Union states that the proposal, by its terms, would not require the disclosure of any information that would also be precluded by the Statute. Union Response (Response) at 2. Since § 7114(b)(4) of the Statute does not require disclosure of information prohibited by law, including the Privacy Act, under the Union's explanation of the meaning and effect of Proposal 1, it would not operate as claimed by the Agency. The Union's interpretation of the proposal is consistent with the wording of the proposal. Consequently, we will adopt the Union's interpretation for purposes of construing what the proposal means and, based on its meaning, determining whether it is outside the duty to bargain. See AFGE, Local 12, 60 FLRA at 537.

      The Agency also claims that Proposal 1 is not "sufficiently specific and delimited[,]" so as to enable the Authority to render a decision as to its negotiability because it is unclear whether the proposal would require it to provide information the disclosure of which would violate the Privacy Act. ACT, Alabama ACT, 2 FLRA 314, 315-18 (1979) (Authority dismisses petitions for review where it is unable to determine from the wording of the proposal, and the Union's explanation, exactly how the proposal would work, so as to be able to assess it under applicable law and regulation). See also AFGE, AFL-CIO, Nat'l Border Patrol Council and Nat'l INS Council, 42 FLRA 599, 629-31 (1991). Based on the foregoing construction of the proposal and consistent with the Union's interpretation, we find that the proposal is sufficiently specific for the Authority to determine whether it is negotiable. See Fraternal Order of Police, Lodge #1F, 57 FLRA 373, 387 (2001) (proposal incorporating applicable legal standard is sufficiently specific and delimited).

      Based on the wording of Proposal 1 and the Union's explanation, the meaning of the proposal is stated as follows: At each facility, the Union may appoint a representative who will serve, on official time, as the EBUS Site Representative. That Representative will provide technical expertise and will identify potential impacts that EBUS may have on bargaining unit employees. The Agency will be required--on an ongoing basis and without regard to whether the Union files a specific information request--to provide the Representative with data regarding the implementation of EBUS (e.g., data regarding software and new hardware, trouble reports, potential fixes). The Agency, however, is only required to provide information to which the Union is entitled under the Statute. Proposal 1, moreover, is not, by itself, intended to impose bargaining obligations at the local level. Record at 2.

B.     Positions of the Parties

1.      Agency

      The Agency claims that it has no duty to bargain over Proposal 1 because the subject matter of "official time to perform representational duties associated with EBUS" is "expressly covered by Article 2 of the [p]arties' collective bargaining agreement."  [n4]  Statement of Position (Statement) at 5. The Agency states that "[t]here is no authority at the local level to increase those entitlements" to official time provided in Article 2. Id.

      The Agency asserts further that the "formulation of technological workgroups" and "the release of any information to Union representatives participating in such a group" are subject matters that are "covered by" Article 48 of the agreement. According to the Agency, under Article 48, the Union is authorized to designate a representative on such a group, who will participate on duty time, in order to provide an "operational perspective[.]" Id. [ v62 p176 ]

2.     Union

      Referring to the Post-Petition Conference Report, the Union states that the report "specifically reveals the parties[`] understanding that the Agency is only required to provide information that the Union is otherwise entitled to receive under the Statute." Response at 2.

      As to the Agency's "covered by" defense, the Union states that "the parties have mutually agreed" in the agreement "to only use the `expressly contained in' prong" of the Authority's "covered by" test "as a defense in duty[-]to[-]bargain cases." Id. at 3. The Union argues that, under that test, Article 2 pertains only to official time for facility representatives. According to the Union, it does not apply to a representative designated by the Union for a specific Agency initiative, such as the EBUS Site Representative provided for in the proposal. The Union asserts that, so understood, the proposal does not concern a matter "covered by" Article 2. Further, the Union acknowledges that Section 21 of Article 2 precludes parties at the local level from increasing official time entitlements. Nevertheless, the Union notes that Article 2 provides that parties at the national level can agree to exceptions to that rule. The Union contends that Proposal 2 at issue in this case would establish such an exception.

      As to the claim that the proposal is "covered by" Article 48, the Union maintains that the EBUS Site Representative is not a member of such a group, but is a Union representative "working alone." Id. at 4. Moreover, the Union points out, nothing in Article 48 addresses the provision of information to the Union representative provided for in Proposal 1.

C.      Analysis and Conclusions

      The Authority stated, in Professional Airways Systems Specialists, 56 FLRA 798 (2000) (PASS), that two types of disputes may be raised in negotiability proceedings: (1) negotiability disputes, which involve a disagreement between the parties concerning the legality of a proposal; and (2) bargaining obligation disputes, which involve a disagreement concerning whether the parties are obligated to bargain over a proposal that otherwise is negotiable. Id. at 803; see 5 C.F.R. §§ 2424.2(a), (c) (defining negotiability and bargaining obligation disputes); NATCA, 61 FLRA 437, 441-42 (2006). An example of a bargaining obligation dispute is a claim by an agency that a proposal concerns a matter that is "covered by" a collective bargaining agreement. 5 C.F.R. § 2424.2(a)(1).

      With respect to Proposal 1, the Agency has raised a negotiability dispute that the proposal is contrary to law because it would require the Agency to disclose information that is protected from disclosure. It has also raised a bargaining obligation dispute that the matter is "covered by" the parties' national agreement. The Agency's negotiability issue has been resolved in addressing its objections to the meaning of the proposal. The proposal is limited to requiring the disclosure of information that the Agency has an obligation to disclose under § 7114(b)(4) of the Statute and, as such, is not contrary to law.

      Turning to the Agency's bargaining dispute, under the Authority's "covered by" test, a party is not required to bargain over terms and conditions of employment that have already been resolved by bargaining. United States Dep't of Health and Human Serv., Social Security Admin., Baltimore, Md., 47 FLRA 1004, 1017-18 (1993) (SSA). To assess whether a particular proposal is "covered by" the parties' agreement, the Authority applies a two-prong test. Under the first prong of the test, the Authority examines whether the subject matter in dispute is expressly contained in the agreement. See, e.g., Dep't of the Treasury, Internal Revenue Serv., Kansas City Serv. Ctr., Kansas City, Mo., 57 FLRA 126, 128-29 (2001). If the agreement provision does not expressly contain the matter, then the Authority will determine, under the second prong of the test, whether the matter is inseparably bound up with, and thus plainly an aspect of, a subject "covered by" the agreement. Id.

      The Union asserts that, under the parties' master agreement, only prong 1 of the Authority's test is applicable in this case. See Article 7, Section 1. The Agency does not dispute this assertion. Accordingly, all "covered by" claims advanced by the Agency in this case will be analyzed under that prong. See 5 C.F.R. § 2424.32(c)(ii)(2) (failure to respond to an assertion raised by the other party will, where appropriate, be deemed a concession to that assertion); NATCA, 61 FLRA at 441 (same); see also PASS, 56 FLRA at 799 n.3; Soc. Sec. Admin., 55 FLRA 374, 377 (1999) ("covered by" defense is subject to waiver).

      Applying the first prong of the "covered by" test, the question is whether Proposal 1 is expressly contained in Article 2 and Article 48 of the parties' master agreement. In this regard, Article 2 provides for Union representatives, and designees, for specified organizational levels at Agency facilities and official time for the representational activities of those representatives. Article 2, Section 21, also provides that the amounts of official time set forth in Article 2 cannot be increased or decreased unless agreed to by the parties at the national [ v62 p177 ] level. Because Proposal 1 arose out of bargaining at the national level, and concerns an amount of official time for EBUS representatives, even if such representatives fall within the ambit of Article 2--which the Union disputes--that provision does not excuse the Agency from bargaining over Proposal 1. As such, Proposal 1 cannot excuse the Agency from bargaining. See PASS, 56 FLRA at 805 (definition of seniority not "covered by" agreement because provision of agreement "expressly permits" parties to bargain other definitions).

      As for Article 48, that provision: (1) concerns work groups relating to technological, procedural, or airspace changes that are formed by the Agency; and (2) specifies that Union representatives will participate in any such groups to provide "operational perspective." Article 48, Section 2. Proposal 1, by its terms, does not concern a work group. Rather, it relates to an individual Union representative who will serve as a resource person knowledgeable about the operation of EBUS and its effect on unit employees. That is, the proposal does not presuppose, and would operate without, the formulation of a work group by the Agency. Thus, Proposal 1 does not concern a matter that is expressly contained in Article 48.

      Accordingly, we find that Proposal 1 is within the duty to bargain.

V.      Proposals 6 and 7

Proposal 6
After a BUE completes the required DARC CBI training, the BUE shall have access to the CBI training lab on duty time for self-initiated refresher training. If more than thirty (30) days pass after the completion of an individual BUE's CBI training, the BUE, upon request, shall be provided up to thirty (30) minutes to review any portion of the training prior to his or her first operational use of DSR with EBUS running as the Back Up System.  [n5]  The Agency shall be responsible for notifying the individual BUEs when thirty (30) days have passed since the completion of the BUE's CBI training.
Proposal 7
At the key site for EBUS, the Co-Leads of the Air Traffic DSR Evaluation Team ("ATDET"), and/or their designees, will evaluate whether the allocated training time and materials are adequate to ensure proficiency on EBUS/DARC changes. At the conclusion of the evaluation, the ATDET Co-Leads will discuss any changes that need to be implemented at all subsequent sites.

A.     Meaning of the Proposals

      Where the Union's explanation of a proposal is consistent with its wording, we will adopt that explanation for purposes of determining the negotiability of the proposals. See Laurel Bay, 51 FLRA at 737--38.

      Based on the wording of Proposal 6 and the Union's explanation, which is consistent with the wording of the proposal, the meaning of Proposal 6 is stated as follows: After a unit employee completes the Direct Access Radar Channel Computer-Based Instruction (DARC CBI) training--a computer-based training program that the Agency plans to require--the unit employee will be permitted refresher training on duty time. If the unit employee has completed his or her DARC CBI training, and more than thirty days pass without the employee being assigned use of EBUS, then the employee will be allowed up to thirty minutes of refresher training prior to being assigned to use EBUS. The Agency must notify each unit employee when thirty days have passed from his or her completion of the DARC CBI training. Proposal 6 does not, by itself, impose a requirement that unit employees be trained before being assigned EBUS-related duties.

      Based on the wording of Proposal 7 and the Union's explanation, which is consistent with the wording of the proposal, the meaning of Proposal 7 is stated as follows: The Air Traffic DSR Evolution Team (ATDET) is a team consisting of three Union and three Agency officials, which addresses control room-related issues, including training issues. At the lead facility for implementing EBUS, the Co-Leads and/or their designees will evaluate whether allocated training times and materials are adequate to ensure proficiency in the EBUS. The Co-Leads will then engage in collaborative discussions and will make recommendations to the Agency, which has the authority to decide whether to implement those recommendations.

      [ v62 p178 ] Because the Union's explanation of the proposals is consistent with their wording, we will adopt that explanation for purposes of determining the negotiability of the proposals.

B.      Positions of the Parties

1.     Agency

      The Agency contends that the subject matter of Proposal 6 is "covered by" Article 67 of the parties' agreement because that provision entitles management to "determine individual training methods and needs."  [n6]  Statement at 6.

      The Agency next asserts that Proposal 6, which requires management to assign training to employees during duty hours, is outside the duty to bargain because it affects management's right to assign work. The Agency also contends that proposals requiring management to provide employees refresher training to keep up with new technology excessively interfere with the right to assign work. Finally, the Agency maintains that proposals that require training as a condition precedent to work assignments, or prescribe the duration of training, affect the right to assign work.

      The Agency argues that Proposal 7 is not sufficiently "specific and delimited" to permit an Authority negotiability determination. Statement at 12. The Agency also contends that the subject matter of Proposal 7 is "covered by" Article 67 and Article 48 of the parties' agreement. Finally, the Agency claims that the proposal: (1) involves the Union in management's internal decision-making process regarding the exercise of management's rights under § 7106 of the Statute; and (2) concerns the exercise of its right, under § 7106(b)(1), to determine the technology, methods, and means of performing work.

2.     Union

      As to the Agency's "covered by" argument, the Union argues that the intent of Proposal 6 is to provide "refresher" training, whereas Article 67 addresses "remedial" training. Response at 5. The Union contends that "refresher" training is not, therefore, "covered by" Article 67.

      The Union maintains that proposals providing for training that will enable employees to perform the duties of their positions, but which do not dictate the timing or the content of that training, are negotiable as appropriate arrangements under § 7106(b)(3). According to the Union, Proposal 6 applies to employees who are being assigned new duties and without training in the performance of those duties, it is foreseeable that employees will be at risk for adverse performance evaluations or discipline. The Union maintains that, by providing refresher training to such employees, thereby forestalling these potential adverse effects, the proposal does not excessively interfere with management's right to assign work.

      The Union maintains that the subject matter of Proposal 7 is not "covered by" Article 67 or by Article 48. As to the Agency's management rights claims, the Union contends that the proposal does nothing more than establish a forum for the exchange of views between the Union and Agency co-leads. The Union also explains that this forum is limited to discussing possible changes to the training program, rather than deciding what those changes ultimately will be. Consequently, the Union asserts, the proposal does not involve the Union in the deliberative process whereby the Agency exercises its rights under § 7106(a)(2)(B) and § 7106(b)(1).

C.     Analysis and Conclusions

      Regarding the Agency's "covered by" allegation, Article 67 provides, among other things, training time for employees whose developmental training has been interrupted so as to allow them to regain proficiency, remedial training to correct deficiencies, and duty time for Agency-directed study courses. Article 67 also provides the Agency with general authority to determine individual training methods and needs.

      The issues related to Proposal 6 in this case are indistinguishable from the issues related to a similar disputed proposal in PASS. In that case, the Authority found that a contract provision granting the Agency general authority to determine training needs and methods encompassed the subject matter of a proposal designed to afford training opportunities for employees who needed to attain a given level of proficiency. PASS, 56 FLRA at 804. Applying prong 1 of its "covered by" test, the Authority found that the subject matter of the proposal was "covered by" the contract provision.

      As in PASS, the Agency authority to determine training set forth in Article 67 in this case expressly addresses the training provided in Proposal 6, that is, training designed to restore proficiency in use of EBUS. The Union's argument that Article 67 concerns remedial training, while Proposal 6 concerns refresher training, fails to take into account the broad authority to determine [ v62 p179 ] training needs and methods afforded the Agency under that Article. Consequently, under prong 1, Proposal 6 is "covered by" Article 67 of the parties' master agreement and the Agency is not obligated to bargain over that proposal. [n7] 

      Accordingly, we find that Proposal 6 is "covered by" Article 67 and that the Agency is not obligated to bargain over that proposal. Because, as noted above, the Union maintains that Proposals 6 and 7 must be considered together, Proposal 7 is also outside the duty to bargain and we do not address it separately.

VI.      Proposals 8 and 9

Proposal 8
All BUEs shall be granted immunity from responsibility for all operational errors, operational deviations, technical violations, and other similar incidents for a period of sixty (60) days after EBUS is fully operational at each facility, including operations on BCC-24 on both the LCN and BCN.
Proposal 9
The use of CD-R SAR data for operational error/deviation investigation by the Agency shall be negotiated at the national level. However, any SAR data derived from EBUS shall not be used as the primary means to initiate an investigation of, or to determine if[,] an operational error/deviation has occurred.

A.      Meaning of the Proposals

      As stated above, where the Union's explanation of a proposal is consistent with its wording, we will adopt that explanation for purposes of determining the negotiability of the proposals.

      The Union explained the acronyms used in the proposal as follows: "LCN" is the primary network channel, "BCN" is the backup network channel, and "BCC-24" is the software that will be used on those networks. The Agency did not dispute the Union's explanation, but the parties did not further explain the significance of the terms.

      The Union explained, consistent with the wording of the proposal, that Proposal 8 would grant bargaining unit employees immunity from discipline or other adverse consequences where their use of EBUS results in operational errors, operational deviations, technical violations, and other similar incidents. The Union further explained that the term "immunity" is intended to provide employees with freedom from discipline or adverse consequences resulting from the specified errors. The Union did not explain the meaning and significance of the phrase "other similar incidents." The Agency did not dispute the Union's explanation of the proposal, but claimed that the term "immunity" and the phrase "other similar incidents" are "too vague." Record at 4.

      With respect to Proposal 9, the parties agreed that the CD-R SAR records data from the EBUS system. The first sentence of Proposal 9 would require negotiations at the national level over whether and/or how this data would be used in an investigation by the Agency into operational errors and/or deviations. The second sentence of the proposal would preclude this data from being the primary means of initiating an investigation into, or establishing the occurrence of, an alleged operational error/deviation. In this regard, the Union explained, consistent with the wording of the proposal, that, under Proposal 9, management would be allowed to use this data as secondary, reinforcing evidence, but it could not be the sole evidence to form the basis of an investigation or establishing an operational error/deviation.

      Because the Union's explanation of the proposals is consistent with their wording, we will adopt that explanation for purposes of determining the negotiability of the proposals.

B.     Positions of the Parties

1.      Agency

      According to the Agency, by granting immunity to employees for errors or deviations for the stated period, Proposal 8 affects management's right to discipline under § 7106(a)(2)(A) of the Statute. In addition, the Agency asserts that the proposal would preclude management from evaluating employees' performance and, as a consequence, would prevent management from taking performance based actions, thereby affecting management's right to direct employees and assign work under § 7106(a)(2)(A) and (B) and its right to discipline employees under § 7106(a)(2)(A). Further, because employee errors/deviations may result in remedial training, the Agency argues that the proposal affects management's right to assign work.

      [ v62 p180 ] The Agency maintains that Proposal 8 is not an appropriate arrangement under § 7106(b)(3). Specifically, the Agency contends that the Union has not shown how employees would be adversely affected by implementation of EBUS. Consequently, the Agency argues that the Union's explanation of the operation of the proposal is "purely speculative" and fails to establish that the proposal is an arrangement within the meaning of § 7106(b)(3). Statement at 14. The Agency also states that the proposal excessively interferes with the management's rights enumerated in its arguments above.

      The Agency claims that the subject matter of Proposal 9 is "covered by" Article 64 of the parties' agreement and, thus, that it has no duty to bargain over the proposal. The Agency also claims that Proposal 9 would restrict management's use of data as evidence and limit its use of appropriate investigative techniques to uncover errors. According to the Agency, such errors would subject employees to discipline or performance based actions and, thus, the proposal affects management's rights to discipline employees, under § 7106(a)(2)(A), and to direct employees and assign work, under § 7106(a)(2)(A) and (B). Finally, the Agency contends that Proposal 9 excessively interferes with its management rights and does not constitute an appropriate arrangement.

2.     Union

      The Union argues that proposals limiting management's ability to take disciplinary and adverse action against employees "for poor performance that is caused by management's failure to provide training" are negotiable as appropriate arrangements, as long as the effect remedied is caused by the exercise of a management right. Response at 11. Thus, the Union contends that Proposal 8 is an appropriate arrangement. Specifically, the Union asserts that the proposal affords "immunity for a limited time period for any controller that is adversely affected by" the assignment of work under the EBUS system. Response at 12. According to the Union, the proposal is narrowly tailored "to assist only those controllers who suffer an actual adverse impact from the implementation of EBUS and only for a period of two months." Id.

      The Union claims that Proposal 8 benefits employees by making them less reluctant to use the new system and by ensuring that they do not receive adverse performance evaluations while learning that system. The Union contends that the proposal does not excessively interfere with management's rights because: (1) it allows management to take disciplinary action for any other employee activity not related to the implementation of EBUS; and (2) the immunity period is short. According to the Union, the burden on management's rights is light.

      The Union acknowledges that Proposal 9 may affect management's right to discipline, but contends that the proposal is an appropriate arrangement within the meaning of § 7106(b)(3). The Union argues, in this regard, that it is only attempting to "limit the use of EBUS data to a supporting role" in evaluating employee performance, "not eliminating it altogether." Id. at 15. Moreover, the Union distinguishes Proposal 9 from proposals preventing management from using certain evidence as a basis for discipline because Proposal 9 limits only evidence regarding employee errors while using EBUS, but not evidence as to other types of employee errors.

C.      Analysis and Conclusions

      The Union does not dispute the Agency's claim that Proposal 8 affects management's right to discipline employees under § 7106(a)(2)(A) of the Statute. As there is no dispute that Proposal 8 would immunize employees from discipline or performance-based action for operational errors, operational deviations, technical violations, and other similar incidents once EBUS is operational, it affects management's right to discipline employees under § 7106(a)(2)(A) of the Statute. See, e.g., IAMAW, 59 FLRA 830, 831 (2004). See also AFGE, Local 1709, 56 FLRA 549, 552 (2000) (proposals immunizing employees from disciplinary action for specified performance-related or non-performance-related conduct affect management's right to discipline).

      The Union argues only that the proposal is negotiable as an appropriate arrangement under § 7106(b)(3). In determining whether a proposal or provision constitutes an appropriate arrangement within the meaning of § 7106(b)(3), the Authority applies the analytical framework set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this framework, 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. 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's rights. See KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded employees under the arrangement against the intrusion on the exercise of management's rights. See id.

      [ v62 p181 ] The Authority has recently held, in a case involving the same parties, that a proposal precluding discipline is not an appropriate arrangement. See NATCA, 61 FLRA 341, 346-47 (2005) (employees will not be disciplined based on data from a particular operational system that has not been verified). As in NATCA, even assuming that Proposal 8 constitutes an arrangement for employees working under EBUS as it is initially implemented, it is not an appropriate arrangement because it would immunize employees from discipline or performance-based action for any and all operational errors, operational deviations, technical violations, and other similar incidents in the first two months in which EBUS is operational. Id. See also POPA, 48 FLRA 129, 147 (1993) (POPA II) (proposals immunizing employees from discipline for specified conduct regardless of the circumstances of that conduct excessively interfere with management's right to discipline). The facts that the proposal would not preclude discipline or performance-based action for other matters, or that the immunity applies for only two months, do not outweigh the significant burden on management's rights imposed by the immunity afforded employees under the proposal. This is because the proposal contains no exception that takes into account the seriousness of the operational error, operational deviation, or technical violation. See POPA, 47 FLRA 10, 90 (1993) (proposal not an appropriate arrangement because benefit afforded employees under proposal obtained by restricting management's ability to impose discipline appropriate to facts and circumstances). Because the proposal would preclude any and all discipline based upon employees' use of EBUS, regardless of the nature of the error, deviation, or violation, it excessively interferes with management's right to discipline under § 7106(a)(2)(A) of the Statute. See POPA II, 48 FLRA at 147.

      Accordingly, we find that Proposal 8 is not an appropriate arrangement within the meaning of § 7106(b)(3) and that it is outside the duty to bargain. [n8]  Because, as noted above, the Union maintains that Proposals 8 and 9 must be considered together, Proposal 9 is also outside the duty to bargain, we do not consider it separately.

VII.       Proposals 10 and 11

Proposal 10
Any changes to local adaptation of EBUS shall be negotiated by the Parties at the local level.
Proposal 11
All issues expressly delegated to the Parties at the facility level by this Agreement shall be negotiated and/or resolved in accordance with the provisions of Article 7 of the CBA [collective bargaining agreement]. Any issues not addressed by this Agreement shall be negotiated and/or resolved in accordance with the provisions of Article 7 of the CBA.

A.     Meaning of the Proposal

      As stated above, where the Union's explanation of a proposal is consistent with its wording, we will adopt that explanation for purposes of determining the negotiability of the proposals.

      Based on the wording of Proposal 10 and the Union's explanation, which is consistent with the wording of the proposal, the meaning of Proposal 10 is that if an issue involving the implementation of EBUS is a purely local issue and that issue is not addressed or resolved elsewhere in the proposed memorandum of understanding (MOU), then there will be local negotiations over that issue.

      Based on the wording of Proposal 11 and the Union's explanation, which is consistent with the wording of Proposal 11, the meaning of the proposal is that the term "this Agreement" refers to the proposed MOU that consists of the thirteen sections presented in the Union=s petition. If a change concerning EBUS is not within the scope of the Union=s proposed MOU, then the change must be implemented in accordance with Article 7 of the parties' national level CBA.

      Because the Union's explanation of the proposals is consistent with their wording, we will adopt that explanation for purposes of determining the negotiability of the proposals.

B.      Positions of the Parties

1.      Agency

      The Agency maintains that, because the bargaining obligation between the parties exists at the national level and notice concerning implementation of EBUS was given to the Union at that level, there is no duty to bargain below the national level. According to the Agency, [ v62 p182 ] because Proposal 10 purports to establish a bargaining obligation at the local level, it is a permissive matter. Moreover, the Agency claims that procedures governing mid-term bargaining concerning changes in conditions of employment at the local level are "covered by" Article 7 of the parties' agreement.

      Further, because EBUS is software used by the Agency to perform its work, the Agency contends that, insofar as Proposal 10 concerns EBUS, it relates to the means by which the Agency accomplishes its mission, a permissive matter of bargaining under § 7106(b)(1).

      The Agency also contends that it has no duty to bargain over Proposal 11, which concerns mid-term bargaining at the local level, because the procedures that must be followed in mid-term bargaining over changes in working conditions are "covered by" Article 7 of the parties' agreement. Moreover, the Agency asserts that, because exclusive recognition exists at the national level, and notice to the Union regarding implementation of EBUS was at that level, there is no statutory duty to bargain below that level. According to the Agency, proposals concerning local level bargaining, such as Proposal 10, are permissive matters and it has elected not to bargain over the proposal.

2.      Union

      The Union contends that Proposal 10 is not "covered by" Article 7 of the parties' agreement because the proposal does not address the relationship between national-level and local-level bargaining. Specifically, according to the Union, the parties at the national level have the power to delegate authority for local level bargaining on that matter. Finally, the Union asserts that the Agency's arguments as to bargaining over a § 7106(b)(1) matter are "irrelevant" because Proposal 10 concerns local level bargaining over the implementation of EBUS, not bargaining over the substantive exercise of management's rights under § 7106(b)(1). Response at 18.

      As to the Agency's "covered by" claim regarding Proposal 11, the Union contends that, although Article 7 establishes a general process for mid-term bargaining, it does not address the relationship between national-level and local-level bargaining and, specifically, does not address the delegation of authority to bargain at the local level with respect to EBUS. Moreover, the Union maintains that nothing in Article 7 precludes the parties from bargaining over delegation of authority to parties at the local level to resolve local issues concerning the implementation of EBUS.

C.      Analysis and Conclusions

      Under Authority precedent, it is well established that there is no statutory obligation to bargain below the level of recognition. See, e.g., United States Food and Drug Admin., Northeast and Mid-Atlantic Regions, 53 FLRA 1269, 1273-74 (1998) (FDA); Dep't of Defense Dependents Schools, 12 FLRA 52, 53 (1983). Local negotiation, therefore, is a permissive subject of bargaining. FDA, 53 FLRA at 1274.

      It is undisputed that the Union's exclusive recognition in this case is at the national level of the Agency. Proposal 10 purports to create an obligation on the part of Agency management at the facility level to bargain over matters related to the implementation of EBUS. Because Proposal 10 concerns local level bargaining, it concerns a permissive subject of bargaining. Consequently, the Agency may, but is not required to, bargain over the proposal. The Union does not dispute that bargaining at the local level in the circumstances of this case is permissive, but argues only that the Statute does not preclude bargaining over the subject matter of the proposals.

      As such, we find that Proposal 10 is a permissive, rather than mandatory, subject of bargaining. Consistent with § 2424.40 of the Authority's Regulations, we will dismiss the petition for review and state that the proposal concerns matters that are negotiable at the election of the Agency. See NAGE, Local R1-109, 61 FLRA 588, 590-91 (2006); Nat'l Weather Service Employees Organization, 61 FLRA 241, 243 (2005). Given this result, it is unnecessary to address the Agency's "covered by" arguments. Because, as noted above, the Union maintains that Proposals 10 and 11 must be considered together, we do not consider Proposal 11 separately.

VIII.      Proposal 13

This Agreement may be re-opened by mutual agreement of the Parties in accordance with the provisions of Article 7 of the CBA.

A.     Meaning of the Proposal

      As stated above, where the Union's explanation of a proposal is consistent with its wording, we will adopt that explanation for purposes of determining the negotiability of the proposals.

      Based on the wording of Proposal 13, and the Union's explanation, which is consistent with the wording of the proposal, Proposal 13 would allow the parties [ v62 p183 ] to reopen the Union=s proposed EBUS MOU if they mutually agree to do so.

      Because the Union's explanation of the proposal is consistent with their wording, we will adopt that explanation for purposes of determining the negotiability of the proposals.

B.      Positions of the Parties

1.     Agency

      The Agency contends that it has no duty to bargain over Proposal 13, which establishes a reopener for bargaining at the local level over matters contained in the proposed MOU, because Article 7 of the parties' agreement establishes the procedures that must be followed in mid-term bargaining over changes in working conditions. In addition, the Agency asserts that Article 104 of the parties' agreement provides the specific conditions that permit reopening provisions of the agreement.

2.      Union

      The Union maintains that Proposal 13 is distinguishable from the matters "covered by" Articles 7 and 104 of the parties' agreement because Proposal 13 is "a flexible sunset clause that essentially allows the Agency or the Union to reopen the MOU at any time." Response at 19. According to the Union, the parties' agreement does not address "sunset clauses[.]" Id.

C.      Analysis and Conclusions

      The Agency's only claim as to Proposal 13 is that the proposal is "covered by" Article 7 and Article 104 of the parties' agreement. The Agency makes no claim that the proposal is inconsistent with law, rule, or regulation. That is, the only issue as to this proposal constitutes a bargaining obligation dispute. As explained above, the phrase "bargaining obligation dispute" is defined in § 2424.2(a) of the Authority's Regulations as "a disagreement between an exclusive representative and an agency concerning whether, in the specific circumstances involved in a particular case, the parties are obligated to bargain over a proposal that otherwise may be negotiable." The Authority's Regulations further specify, in § 2424.2(d), that a negotiability appeal "that concerns only a bargaining obligation dispute may not be resolved under [negotiability proceedings]." See Antilles Consolidated Education Ass'n, 61 FLRA 327, 331 (2005) (ACEA). As the only dispute as to Proposal 13 is a bargaining obligation dispute, consistent with ACEA, the petition for review as to Proposal 13 must be dismissed. See id.

      Accordingly, we find that the petition for review as to Proposal 13 should be dismissed.

IX.     Order

      The Agency shall upon request or as otherwise agreed to by the parties, bargain on Proposal 1. The Petition for Review as to Proposals 6, 7, 8, 9 and 13 is dismissed. Because the duty to bargain does not extend to Proposals 10 and 11, the petition for review as to those proposals is also dismissed. Proposals 10 and 11 are bargainable only at the election of the Agency. [ v62 p184 ]


APPENDIX

1. Article 2 of the parties' agreement provides, in relevant part, as follows:

ARTICLE 2
UNION RECOGNITION AND REPRESENTATION

. . . .
Section 3. The Union may designate Facility Representatives for each facility. The Union may designate one (1) representative and one (1) designee for each team, crew or group, including the NOTAM Office, as appropriate in each facility. In those facilities where representatives are designated for each team, crew or group, and a traffic management unit is present, a representative may be designated from the traffic management unit. On each tour of duty, the Union may designate one (1) representative to deal with first and second-level supervisors. At the tour representative's option, he/she may designate an alternate to act on his/her behalf in dealing with first and second-level supervisors. In addition, the Union shall designate in writing one (1) principal representative and one (1) designee. Only the principal representative and/or his/her designee may deal with the Air Traffic Manager and/or Assistant Air Traffic Manager.
. . . .
Section 21. The amounts of official time contained in this Agreement may not be increased or decreased. Exceptions to this Section may be agreed to only by the Parties at the national level.

2. Article 7 of the parties' agreement provides, in relevant part, as follows:

ARTICLE 7
MID-TERM BARGAINING

Section 1. It is agreed that personnel policies, practices and matters affecting working conditions, not expressly contained in this Agreement, shall not be changed by the Agency without prior notice to, and negotiation with the Union. The provisions of this Article also apply to substance bargaining, if appropriate, and/or impact and implementation bargaining arising from changes to operational procedures and procedures resulting from technological changes.
. . . .
Section 5. The Parties at the local or regional levels may enter into written agreements or understandings on individual issues that do not conflict with this Agreement. However, unless specifically authorized by this Agreement, no such local or regional agreements may increase or diminish entitlements expressly contained in this Agreement.
Section 6. The Union may initiate bargaining on personnel policies, practices, and matters affecting working conditions during the term of this Agreement on matters not specifically covered by this Agreement in accordance with the Federal Service Labor[-Management] Relations Statute. When the Agency has received a written proposal from the Union, if required, a meeting will be scheduled within fifteen (15) days to review the Union's proposal. . . . The Parties shall meet at mutually agreeable times and places to conduct negotiations. If no agreement is reached, the provisions of Section 3 and/or 4 of this Article shall apply.
. . . .

3. Article 48 of the parties' agreement provides, in relevant part, as follows:

ARTICLE 48
TECHNOLOGICAL / PROCEDURAL CHANGE

. . . .
Section 2. The Parties agree that it is mutually beneficial for the Union to be involved in work groups established at the local, regional or national level, to provide operational perspective into the development, testing, and/or deployment of technological, procedural, or airspace changes. Further, it is in the best interest of the Parties to resolve or minimize the technical issues so as to ultimately provide for more timely resolution.
Section 3. The Agency shall promptly notify the Union as to the formulation of any such work group(s) which affects bargaining unit employees. The scope of the work group shall be defined in writing and communicated to each member prior to the commencement of business. The extent to which the individual Parties are empowered to reach agreement in specific areas shall be determined in writing by the respective Parties.
[ v62 p185 ] The Union shall be allowed to designate a participant from the affected bargaining unit(s) to those work group(s). Union designated work group members will be provided access to the same information as any other work group member. Agreements reached by the Parties in the work group(s) referenced above shall be reduced to writing and shall be binding on both Parties.
. . . .

4. Article 64 of the parties' agreement provides, in relevant part, as follows:

ARTICLE 64
OPERATIONAL ERROR/DEVIATION
INVESTIGATION,
REPORTING AND REVIEW BOARD

Section 1. Employees shall be relieved from position as soon as operationally possible when the occurrence of an operational error/deviation is known or suspected. If the Agency determines that an operational error/deviation (OE/OD) may have occurred and any unit employee is to be interviewed by the Investigator-In-Charge (IIC) or any agent of the Agency, the Union representative or his/her designee may be present if the employee so requests. In the event of any operational error/deviation, the principal Union representative or his/her designee shall be notified promptly.
. . . .
Section 4. The determination that an employee has been identified as the primary cause of the operational error ("Controller A") shall be made after consideration of the factors listed in FAA Order 7210.56, paragraph 5-1-5, Investigation Process. When an employee is involved in an operational error/deviation, the Agency may elect not to decertify the employee in accordance with paragraph 5-1-7.
. . . .

5. Article 67 of the parties' agreement provides, in relevant part, as follows:

ARTICLE 67
TRAINING

Section 1. The Parties agree that the Agency determines individual training methods and needs. Employees will be given the opportunity to receive training in a fair and equitable manner.
Section 2. Within ninety (90) days of the signing of this Agreement, the Parties shall establish a learning council at the national level composed of equal numbers of representatives of the Union and the Agency. The purpose of this council shall be to improve requirements analysis, foster efficient use of resources and increase employee involvement. The council will make recommendations to the Agency at the national level in these areas. [The remainder of the section concerns regional level learning councils.]
Section 3. If an employee's developmental training is interrupted for thirty (30) days or more, the employee shall be granted sufficient training time to attain the level of proficiency he/she had at the time of the interruption, prior to the resumption of the remaining allotted training hours. The employee's evaluations and/or training reports shall be used by the Agency to determine when the employee's former level of proficiency has been re-attained.
. . . .
Section 6. Remedial training shall only be administered to correct documented deficiencies in an employee's performance. When an employee is to be given remedial training, he/she shall be notified, in writing, of the specific areas to be covered and the reasons therefore. The training shall be confined to those specific areas. Only these specific subject areas shall be entered into the training record. Any remedial training shall be in accordance with FAA Order 3120.4.
. . . .
Section 8. Supervisors may allow personnel participating in Agency[-]directed study courses to devote a maximum of ten (10) hours per month of duty time to the study of these courses, provided operational and staffing requirements permit.
. . . .

6. Article 104 of the parties' agreement provides as follows: [ v62 p186 ]

ARTICLE 104
REOPENER

Section 1. In the event legislation is enacted which affects any provisions of this Agreement, the Parties shall reopen the affected provision(s) and renegotiate its contents.
Section 2. Any modification of the provisions or regulations of the Federal Labor Relations Authority affecting a provision of this Agreement or the relationship of the Parties may serve as a basis for the reopening of the affected provision(s).
Section 3. In the event of any law or action of the Government of the United States renders null and void any provision of this Agreement, the remaining provisions of the Agreement shall continue in effect for the term of the Agreement.

Chairman Cabaniss, concurring in part:

      I agree that Proposal 1 is properly found to be within the duty to bargain insofar as that section is not covered by Articles 2 and 48 of the parties' master agreement.

      I write separately, however, to note that Proposal 1 could well impact management's right to assign work under 5 U.S.C. § 7106(a)(2)(B). The proposal provides in part that "[t]he NATCA EBUS Site Representative will provide technical expertise and identify potential impacts on BUE[s]" (emphasis added). The Authority has previously held that the right to assign work includes decisions as "to whom or what position the duties will be assigned." Federal Professional Nurses Association, Local 2707, 43 FLRA 385, 392 (1991). This provision is not unlike that found to be outside the duty to bargain in NATCA, 61 FLRA 658, 660 (2006).

      The record does not indicate that this issue was raised by the Agency in these proceedings. Therefore, it is not properly before the Authority. 5 C.F.R. § 2429.5. See also United States Department of Veterans Affairs, Board of Veterans Appeals, 61 FLRA 422, 424 n.3 (2005).



Footnote # 1 for 62 FLRA No. 43 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 62 FLRA No. 43 - Authority's Decision

   The original Petition for Review concerned 13 proposals. During the processing of the petition, the Union agreed with the Agency's contention that Proposals 2, 3, and 4 are "covered by" the parties' national level collective bargaining agreement (agreement) and that Proposal 5 excessively interferes with management's right to assign work under § 7106(a)(2)(B). Union Response at 5. The Agency withdrew its allegation that Proposal 12 is nonnegotiable. Record of Post-Petition Conference at 1. Consequently, those proposals will not be considered further herein.


Footnote # 3 for 62 FLRA No. 43 - Authority's Decision

   The Authority's Regulations, 5 C.F.R. § 2424.2(h), provide as follows: