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

[ v62 p337 ]

62 FLRA No. 59

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

0-NG-2886

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

January 25, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2424 of the Authority's Regulations, and concerns the negotiability of six sections of a proposal. The Agency filed a statement of position to which the Union did not file a response.

      For the reasons that follow, we find that Sections 2, 3, 4, 5, 6, and 10 of the proposal are outside the duty to bargain. [n*]  Accordingly, we dismiss the petition for review.

II.     Proposal and Meaning

      This proposal was submitted in response to the Agency's announced intent to change the working conditions of unit employees in the Mount Vernon (MTV) Area of Potomac Terminal Radar Approach (Potomac TRACON) in a revised regulation, Potomac Consolidated TRACON (PCT) 7110.65, SOP Chapter 8 MTV. The notice concerned changes to the airspace configuration and procedures that unit employees, who are Air Traffic Controllers (ATC), use to perform their work of directing airplanes to and from the Ronald Reagan Washington National Airport and the surrounding area. The ATCs have procedures that inform them of what to do in directing airplanes to and from the airport, and the proposed changes would affect the current procedures and airspace configuration.

      The following are the remaining sections of the proposal before us.

Section 2.      The agency shall provide each bargaining unit employee in the MTV area a minimum of eight (8) hours training pertaining to the airspace changes including one (1) ETG single final north operation exercise and one (1) ETG single final south operation exercise. This training will be incorporated into the Potomac TRACON training order.
Section 3.      For a period of thirty (30) days following implementation of the airspace changes bargaining unit employees in the MTV area shall not be accountable for any operational error or deviation should the changes cause an employee to become confused by the new airspace boundaries or procedures.
Section 4.      The agency shall assign at least one subject matter expert (SME) certified in the MTV area, knowledgeable of the new airspace and procedures to each shift for the first week (seven days) following implementation of the changes.
Section 5.      The proposed airspace and procedures changes shall be evaluated by the Parties during the first ninety days following implementation. In the event the Parties determine the changes do not enhance efficiency for the Area or the NAS, the MTV operation shall revert to its status prior to implementation of the changes.
Section 6.      Staffing guidelines for the MTV area shall be increased by one (1) per shift.
. . . .
Section 10.      This agreement will expire when the provisions noted for incorporation into facility orders, directives and/or standard operating procedures are so incorporated or after the provisions of [S]ection 5 above have been met, whichever is later.

Petition Attachment 2.

      The parties agree that Section 2 seeks to ensure that affected employees receive appropriate training [ v62 p338 ] regarding the new workload and associated operating procedures. The proposal provides a minimum of eight hours of training to familiarize employees with the new procedures, including training on an Electronic Target Generator (ETG), and requires that the new training procedures be incorporated into a local training order. As there is no dispute over the meaning, we will adopt this meaning for purposes of our analysis.

      The parties agree that Section 3 establishes a 30-day grace period immediately following implementation, during which employees would not be held accountable for any operational or deviation errors caused by implementation of the new procedures. An operational error or deviation occurs when an employee is not in strict compliance with Agency rules or orders. See Petition at 6. Without the benefit of this section, an employee could be subject to discipline if the employee made an error while adjusting to the new procedures. As there is no dispute regarding the meaning of Section 3, we will adopt this meaning of the section for purposes of our analysis.

      The parties agree that Section 4 would require the Agency to designate at least one person per shift to serve as a subject matter expert for the first seven days following implementation of the proposed changes. This proposal would not apply to the midnight shift. As there is no dispute regarding the meaning of Section 4, we will adopt this as the meaning of the section for purposes of our analysis.

      At the post-petition conference, the parties agreed to the meaning of each section of the proposal, except for Section 5. The Union asserts that Section 5 establishes a procedure for assessment of the proposed changes during the first 90 days following its implementation. According to the Union, the term "evaluated" means that the parties would meet and discuss how the new changes were working. The Union states that the portion of Section 5 that states: "In the event the parties determine the changes do not enhance the efficiency . . . the MTV operation shall revert to its status prior to implementation," requires mutual agreement. See Record of Post Petition Conference at 3. The Agency disagrees with this explanation and states that in its view, the wording of the last sentence would require the Agency to revert to the prior status if one party disagreed on how the proposed changes were working. For purposes of our analysis, because the Union's interpretation is consistent with the plain wording of the section, we will adopt the Union's interpretation of Section 5 of the proposal. See, e.g., NEA, OEA, Laurel Bay Teachers Ass'n, 51 FLRA 733, 737-38 (1996).

      The parties agree that Section 6 requires the Agency permanently to increase staffing guidelines for the MTV area by one person per shift, excluding the midnight shift. The parties acknowledged that management has the discretion to determine the personnel to staff the shifts. As there is no dispute regarding the meaning of Section 6, we will adopt this meaning of the section for purposes of our analysis.

      The parties agree that Section 10 constitutes a "sunset" clause. Once Section 2 has been incorporated into facility orders, directives, or standard operating procedures, or after the requirements of Section 5 have been met, this memorandum of understanding would expire. As there is no dispute regarding the meaning of Section 10, we will adopt this meaning of the section for purposes of our analysis.

III.     Positions of the Parties

A.     Agency

      The Agency contends that there is no obligation to bargain over Section 2 because the section is covered by Article 67 of the parties' collective bargaining agreement, which addresses training. The Agency asserts that, pursuant to § 7117(b) of the Statute, a compelling need exists for changing the proposed regulation to accomplish the safe, timely, and efficient routing of arriving and departing flights from Reagan National Airport. See Statement of Position (Statement), Attachment at 2. In addition, the Agency contends that the type and method of training, and the selection of personnel to be trained, are "explicit management right[s]" under § 7106(a)(2)(A) and (B) of the Statute and, therefore, outside the obligation to bargain. Statement, Attachment 2 at 3. Moreover, the Agency contends that Section 2 does not fall within § 7106(b) of the Statute. Finally, the Agency claims that there are no employees who are adversely affected because of these changes.

      As to Section 3, the Agency contends that this matter is covered by Article 64 of the parties' agreement, which provides steps for investigating operational error/deviation and, therefore, that there is no obligation to bargain over this section. In addition, the Agency asserts that Section 3 is contrary to FAA Order 7210.56, which requires an investigation of any operational error. Finally, the Agency contends that Section 3 violates its right to discipline under § 7106(a)(1)(A) of the Statute and allows employees to act in an unreasonable, reckless and/or hazardous manner with impunity for a 30-day "grace period." Statement, Attachment at 5.

      With regard to Section 4, the Agency argues that the subject of position descriptions is covered by [ v62 p339 ] Article 17 of the parties' agreement, which concerns the primary duties of ATCs and provides in Section 4 that "`other duties assigned by the Agency shall normally have a reasonable relationship to the employee's official position description.'" Statement, Attachment at 6 (citing Section 4). The Agency also argues that the requirement in Section 4 to designate a person as a subject matter expert for a set period affects management's rights under § 7106(a)(2)(A) and (B) of the Statute to hire, assign, direct or determine the personnel by which Agency operations are to be conducted.

      Turning to Section 5, the Agency contends that there is no obligation to bargain because this matter is covered by Article 48, Section 2 of the parties' agreement, which, according to the Agency, calls for the establishment of local work groups to "`provide operational perspective into the development, testing, and/or deployment of technological, procedural, or airspace changes.'" Statement, Attachment at 7 (citing Article 48, Section 2). Moreover, the Agency contends that the authority to determine the mission, budget, organization and number of employees are management rights under § 7106(a)(1) and (2)(A) and (B) of the Statute and those rights are affected by the section.

      With regard to Section 6, the Agency asserts that the authority to hire, assign, direct, assign work, and determine the personnel by which Agency operations shall be conducted are management rights under "§ 7106(a) and (2)(A) and (B)" and, therefore, Section 6 is not negotiable. Statement, Attachment at 9. According to the Agency, Section 6 affects the right of an agency to assign work under § 7106(a)(2)(B) of the Statute, which includes the right to determine the particular duties to be assigned, the right to decide when work assignments will occur, and the right to decide to whom or what positions the duties will be assigned. Also, according to the Agency, there are no employees adversely affected by this change and it asserts that it does not elect to bargain over Section 6.

      As to Section 10, the Agency contends that because it asserts that both Sections 2 and 5 are not negotiable for the reasons previously given, it follows that any "sunset clause" is also not negotiable. See Statement, Attachment at 9.

B.     Union

      As noted above, the Union did not file a response to the Agency's statement of position. The Union also did not make any arguments regarding the negotiability of the proposal, or the sections of the proposal, in its petition.

IV.     Preliminary Matter

      In its Petition, the Union requested that each section of the proposal be severed. See Petition at 6. The Union explains how each section may stand alone and why each contested section should be considered separately. See id. at 4-9.

      The Agency opposes severance of the proposal. See Statement at 3. According to the Agency, the contested sections of the proposal flow from the same change in the system. The Agency argues that none of the sections exists independently and all share the same characteristic of being non-negotiable because they attempt to "usurp management rights guaranteed by [§] 7106(A) and (B) [sic]." Id. at 4.

      Under § 2424.25(d) of the Authority's Regulations, a union "must support its [severance] request with an explanation of how the severed portion(s) of the proposal . . . may stand alone, and how such severed portion(s) would operate." If the severance request meets the Authority's regulatory requirements, then the Authority severs the proposal and rules on the negotiability of its separate components. See, e.g., AFGE, Local 3354, 54 FLRA 807, 811 (1998).

      In this case, the Union has demonstrated that the sections address separate topics and can stand alone. See Petition at 4-9. The Union also has explained why each contested section should be considered separately. Id. In these circumstances, we grant the Union's request to sever the sections of the proposal and consider them separately.

V.