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

[ v61 p437 ]

61 FLRA No. 83

NATIONAL AIR
TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

and

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

0-NG-2835

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

January 4, 2006

_____

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 § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal. The proposal would require the Agency to compensate unit employees for delays in their promotions when those delays result from the assignment to certain training. The Agency filed a statement of position, and the Union filed a response. The Agency did not file a reply to the Union's response.

      For the reasons set forth below, we find that the proposal is within the duty to bargain.

II.     Background

      The Agency began implementation of the Advanced Technological and Oceanic Procedures (ATOP), a new air traffic control system that uses an advanced, automated computer system to direct aircraft over oceans. As part of implementation, employees in certain facilities are required to engage in training and transition activities (ATOP training). As relevant here, during ATOP training, the Agency suspends the developmental training for two categories of employees: (1) employees who need developmental training in order to become certified as professional controllers as an initial matter; and (2) employees who are already certified as professional controllers at one facility but have transferred to another facility and require developmental training in order to perform successfully at the facility to which they have transferred.

III.      Proposal

Section 28(a). For purposes of this Agreement, the following definitions apply:
(1) Certification Date: The date that a BUE [bargaining unit employee] obtains certification on his or her first two (2) Oceanic positions, all Oceanic positions or all radar associate (D-side) and all radar positions within an Oceanic area of specialty.
(2) ATOP/Ocean21 Training Delay: The number of days that a BUE's training is delayed due to ATOP/ Ocean21 training and/or transition activities. A training delay can be either a formally documented suspension of a BUE[']s training for a specified period of time or a temporary suspension of a BUE[']s training for a period of not less than one (1) day. In the latter case, an ATOP/Ocean21 training delay shall accrue when the staffing utilized for an ATOP/Ocean21 training and/or transition activity added to the staffing utilized for the Oceanic operational control room is equal to or exceeds the BUE staffing which would have normally accommodated training for the BUE affected. Suspensions of training for reasons other than ATOP/Ocean21 training and/or transition activities are not covered by this agreement. Training delays shall be calculated on a week-by-week basis.
(3) Transfer/Promotion Date: The effective date of a BUE's transfer to the next higher developmental pay scale or the promotion of a BUE to the CPC pay scale. A BUE's transfer/promotion date is calculated by subtracting the ATOP/Ocean21 training delay from the certification date.
Section 28(b). Within sixty (60) days of the execution of this Agreement, the Parties at the facility level shall negotiate a method of tracking ATOP/Ocean21 training delays, including delays for those BUEs whose training was interrupted or delayed due to ATOP/Ocean21 training and/or transition activities. Any disagreements shall be handled in accordance with Section 1 of this MOU. [ v61 p438 ]
Section 28(c). Within sixty (60) days after a BUE's transfer/promotion date, the Agency will pay the affected BUE the difference between the actual compensation received and what he/she would have been compensated had there been . . . no ATOP/Ocean 21 training delay as identified by this Agreement.
Section 28(d). Only the first/next transfer/promotion date of a BUE after the ATOP/Ocean 21 training delay is calculated under the provisions of this Agreement. All subsequent transfers/promotions will be handled in the usual manner.

IV.     Meaning of the Proposal

      The Union explains, and the Agency does not dispute, that the proposal would apply to unit employees who are currently involved in developmental training that is needed for certain certifications that are connected to future promotional opportunities. See Record of Post-Petition Conference at 2. The parties explain that these employees' developmental training will be suspended while they complete the ATOP training. See id. While the Union asserts that the ATOP training will last approximately eighteen months, the Agency states that it cannot definitely state how long the ATOP training will last. See id. at 2.

      The parties agree that Section 28(a) defines certain terms that are used elsewhere in the proposal. See id. at 3-4. In addition, the parties agree that Section 28(b) would require the parties at the local level to negotiate a method for tracking delays in developmental training that are caused by ATOP training, and would require that disagreements be handled in accordance with a separate Memorandum of Understanding. See id. at 4. The parties also agree that Section 28(c) would require that, within sixty days after an employee's promotion (after completion of his or her developmental training), the Agency must pay an affected employee the difference between the actual compensation received and the pay that he or she would have received absent the delay in developmental training caused by the ATOP training. See id.

      The parties disagree about how Section 28(c) would operate. According to the Agency, Section 28(c) would select "an arbitrary date (18 months) to begin calculating back pay and retroactive promotion for all[]" employees, and thus would require the Agency to assume that, but for the ATOP training, employees would have completed their developmental training and received necessary certifications. Statement of Position at 6. The Union disagrees, stating that Section 28(c) would apply only after each individual employee has completed his or her developmental training and become certified, and would require compensation only for the delay in each individual employee's developmental training caused by assignment to ATOP training.

      The plain wording of Section 28(c) provides for payment of "the difference between the actual compensation received" and what the employee "would have been compensated had there been . . . no ATOP . . . training delay[.]" Petition at 5. Although the Union asserts that the ATOP training will last approximately eighteen months, nothing in Section 28(c) imposes a fixed, eighteen-month date to begin calculating backpay or requires the Agency to assume that controllers would have completed their developmental training at any particular time. Instead, as argued by the Union, Section 28(c) merely requires that, at whatever time management decides to promote an employee, management will compensate that employee for the amount of time that the employee's developmental training was delayed by ATOP training. As the Union's explanation is consistent with the plain wording of Section 28(c), we adopt the Union's explanation of meaning for the purpose of our analysis. See, e.g., Am. Fed'n of State, County & Mun. Employees, Local 2830, 60 FLRA 671, 671 (2005). Based on that explanation, we interpret Section 28(c) as requiring compensation at the employee's post-promotion pay rate for the length of time that ATOP training delayed the employee's completion of developmental training.

      Finally, with regard to Section 28(d), the parties agree that it means that the proposal would apply only to the first promotion that is delayed, not to any subsequent promotions. See Record of Post-Petition Conference at 4-5.

V.     Positions of the Parties

A.      Agency

      The Agency argues that the proposal is inconsistent with management's right to assign employees under § 7106(a)(2)(A) of the Statute, including its right to determine if and when employees are qualified for promotions. In this regard, the Agency asserts that requiring the Agency to pay backpay to employees "has the effect of dictating to the Agency when the employees are eligible for promotion by assuming that the training delays caused by [the ATOP training] are the only impediments to an individual completing the developmental training." Statement of Position at 4.

      The Agency also argues that the proposal is inconsistent with management's rights under § 7106(a)(2)(B) [ v61 p439 ] to assign work, make determinations with regard to contracting out, and determine the personnel by which Agency operations shall be conducted. In this regard, the Agency asserts that it has determined that the ATOP training is the work that employees should complete, and requiring the Agency to pay employees backpay for developmental training delays "is an interference with the Agency's right to determine which work assignments take precedence over others." Id. The Agency also asserts that a delay in developmental training is not an unjustified or unwarranted personnel action that would entitle employees to backpay, and "[t]he proposal, therefore, is in direct conflict with the stated purposes and policies of the . . . Statute, which require the efficient accomplishment of the operations of the Government and contributions to the effective conduct of public business." Id. at 4-5.

      Further, the Agency claims that the proposal is not an appropriate arrangement under § 7106(b)(3) of the Statute. In this connection, the Agency contends that the proposal is not tailored because employees complete or fail their developmental training at various rates, and "a tailored proposal would address the various rates of training completion." Id. at 6. Moreover, the Agency asserts that, by "selecting an arbitrary date that employees would have been eligible for a pay raise and promotion[,]" the proposal excessively interferes with management's right to determine what training and qualifications are necessary for promotion. Id. The Agency also repeats the assertion that a delay in developmental training is not an unjustified or unwarranted personnel action.

      Finally, the Agency argues that it is not obligated to bargain over the proposal to the extent that it pertains to developmental controllers because the training of developmental controllers is "expressly contained in[,]" and thus "covered by[,]" the parties' collective bargaining agreement. [n1]  Id. at 3. In particular, the Agency asserts that Article 67, Section 3 of the parties' agreement "specifically addresses the effects of developmental training delays." Id.

B.      Union

      The Union asserts that "while the Union's proposal may interfere with a management right," it is an appropriate arrangement under § 7106(b)(3) of the Statute. Response at 5. According to the Union, the proposal is intended to mitigate the adverse effects of management's right to assign employees ATOP training. In this regard, the Union asserts that the effect of management's decision to assign that training, and thereby delay developmental training, is that employees' promotional opportunities will be delayed. The Union contends that it "has projected that the amount of money due each controller [who] is affected by a training delay is approximately $20,000 per controller." Id. at 17. Further, the Union claims that the proposal is tailored to compensate only employees who have their developmental training delayed due to ATOP training. Moreover, the Union asserts that the proposal does not excessively interfere with management rights because it leaves to management's "unfettered discretion" the ability to determine "who will be trained or even when, where, or how long that training will take place." Id. at 13.

      The Union also asserts that the subject matter of the proposal is not "covered by" the parties' collective bargaining agreement. According to the Union, although the Authority's "covered by" test set forth in United States Dep't of HHS, SSA, Balt., Md., 47 FLRA 1004, 1018 (1993) (SSA), is a two-pronged test, the parties have "agreed to only use the `expressly contained in' prong" of the Authority's "covered by" test, and the subject matter of the proposal is not expressly contained in the agreement. [n2]  Response at 2 n.1. The Union asserts that developmental controllers are allotted a total number of hours of developmental training to attain certification and if they cannot attain certification within the allotted time, then they can be removed from the training program. According to the Union, "the clear meaning and intent of Article 67 Section 3 is to allow an employee sufficient time to attain the level of proficiency he/she had at the time of the interruption in their [developmental] training, before that employee's training allotment begins tolling again." Id. at 3. By contrast, the Union contends that the proposal in the instant case is an attempt to address an adverse monetary impact resulting from the impact of a delay in developmental training.

VI.     Analysis and Conclusions

A.      The proposal is an appropriate arrangement.

      Where a union concedes that its proposal affects management's rights under § 7106(a), the Authority will find that the proposal affects those rights. See Prof'l Airways Sys. Specialists, 60 FLRA 609, 611-12 (2005) (citations omitted) (union stated that it "does not dispute that" the proposals affected management's [ v61 p440 ] rights). See also NFFE, Local 1904, 57 FLRA 28, 28-29 (2001) (union "recognize[d] [the] security of [the a]gency to be a management right under 5 USC 7106[a]," and did not dispute that proposal affected management's right). Consistent with the Union's statement that the proposal at issue here "may interfere with a management right," Response at 5, we find that the proposal affects management's rights under § 7106(a)(2)(A) and (B), and we address the Union's claim that the proposal constitutes an appropriate arrangement under § 7106(b)(3). [n3] 

      In determining whether a proposal is an appropriate arrangement, the Authority applies the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986). Under that analysis, 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 AFGE, Local 32, 59 FLRA 926, 928 (2004) (Member Pope concurring). The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See id.

      If the Authority finds the proposal to be an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. See NTEU, 59 FLRA 978, 981 (2004). In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. See id.

      As argued by the Union, the proposal is intended to require compensation to employees whose promotions are delayed due to management's assignment of that training. Further, the proposal would apply only to employees who are adversely affected by the exercise of management's rights, i.e., those employees who would have received more timely promotions absent the exercise of those rights. With regard to the Agency's claim that "a tailored proposal would address the various rates of training completion[,]" Statement of Position at 6, a proposal may be sufficiently tailored where it is not possible to determine which employees will be adversely affected by an agency action, so as to draft a proposal to apply only to those employees. See Patent Office Prof'l Ass'n, 56 FLRA 69, 87 (2000) (then-Member Cabaniss and Chairman Wasserman dissenting in part on other grounds). Consistent with this principle, the Agency's claim that it is not possible to determine in advance each individual's rate of completing training provides no basis for finding that the proposal is not tailored. For these reasons, we find that the proposal is a sufficiently tailored arrangement.

      With regard to whether the arrangement is appropriate, the proposal would benefit employees by compensating them for promotions that they would have received earlier, but for the ATOP training. The Union claims, and the Agency does not dispute, that under the proposal, each covered employee would be entitled to approximately $20,000. Thus, the proposal would provide a significant financial benefit to employees.

      With regard to the burden on management's exercise of its rights, contrary to the Agency's claims, the proposal would not affect management's right to determine which training (ATOP or developmental) takes precedence, when either type of training would be provided, or who would receive training. It also would not affect management's ability to determine when promotions are warranted or what qualifications are needed for such promotions. Instead, the proposal would merely require that, after all training is completed and management determines that a promotion is warranted, management must determine how much money the employee would have received absent the delay caused by that ATOP training, and compensate the employees accordingly. With regard to the Agency's claim that the proposal would provide compensation in the absence of an unjustified and unwarranted personnel action, the Agency does not explain how this would impose a burden on management's rights under § 7106(a)(2)(A) and (B). [n4]  In these circumstances, the burden on management's exercise of its rights is relatively slight.

      Weighing the benefits and burdens, the benefit to employees of receiving compensation of approximately $20,000 is significant. By contrast, as the proposal gives management unfettered discretion to determine training priorities, and qualifications for and timing of promotions, the burdens on management's rights are relatively insignificant. In these circumstances, we find [ v61 p441 ] that the benefits to employees outweigh the burdens on management's rights, and thus, that the proposal constitutes an appropriate arrangement under § 7106(b)(3) of the Statute.

B.      The subject matter of the proposal is not expressly contained in the parties' collective bargaining agreement.

      In assessing whether a matter is "covered by" a collective bargaining agreement, the Authority applies a two-pronged test. Under the first prong, the Authority assesses whether the subject matter is "expressly contained in" the collective bargaining agreement. SSA, 47 FLRA at 1018. "[E]xact congruence of language" is not required. Id. Instead, "if a reasonable reader would conclude that the provision settles the matter in dispute[,]" then the subject matter is covered by the agreement. Id. If the subject matter is not expressly contained in the agreement, then the Authority applies the second prong of the analysis. Under the second prong, the Authority determines whether the matter is "inseparably bound up with and . . . thus [is] plainly an aspect of . . . a subject expressly covered by the contract." Id. That analysis considers the parties' intent and bargaining history. See United States Customs Serv., Customs Mgmt. Ctr., Miami, Fla., 
56 FLRA 809, 814 (2000).

      The Union claims that the parties have contractually agreed that only the first prong of the "covered by" test will apply to their negotiations. The Agency does not dispute this claim. In addition, the Agency frames its argument as a claim that the subject matter of the proposal is "expressly contained in" Article 67, Section 3 of the parties' agreement. Statement of Position at 3. In these circumstances, we apply only the first prong of the "covered by" test. See 5 C.F.R.§ 2424.32(c)(2) ("Failure to respond to an argument or assertion raised by the other party will, where appropriate, be deemed a concession to such argument or assertion.")

Article 67, Section 3 of the parties' agreement provides the following:
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.

Statement of Position, Attachment (Collective Bargaining Agreement).

      The Union explains, and the Agency does not dispute, that developmental controllers are allotted a total number of training hours to obtain certification, and if they cannot obtain certification within that prescribed allotment, then they may be removed from the training program. The Union asserts that Article 67, Section 3 was intended to avoid such potential removals by allowing employees additional developmental training time after that training has been interrupted. According to the Union, Article 67, Section 3 provides only for additional training time and does not expressly address the compensation that employees will receive when their promotions are delayed by interruptions in their developmental training. According to the Agency, the subject matter of the proposal is expressly contained in Article 67, Section 3, because that contract provision "specifically addresses the effects of developmental training delays." Statement of Position at 3.

      Under Authority precedent, the subject matter of proposals has been found "covered by" an agreement under the first prong of the SSA test where the proposals would have modified and/or conflicted with the express terms of a contract provision. See, e.g., United States Dep't of the Treasury, IRS, Denver, Colo., 60 FLRA 572, 573-74 (2005) (Chairman Cabaniss concurring) (proposal permitting employees with approved annual leave to transfer that leave to other employees without regard to whether other, more senior employees were seeking leave for the same time would have "circumvented" contract provision stating that management would resolve leave request conflicts on basis of seniority), reconsid. denied, 60 FLRA 893 (2005), appeal docketed, No. 05-1230 (D.C. Cir. July 1, 2005); Prof'l Airways Sys. Specialists, 56 FLRA 798, 804 (2000) (proposal directing that training be made available to certain employees, and contract provision stating that the employer would determine individual training needs); id. (proposal entitling certain employees to save grade and save pay, and contract provision stating that save grade and save pay would be granted to the extent permissible by specified laws); Dep't of the Army, United States Army Enlisted Records & Evaluation Ctr. Fort Benjamin Harrison, Ind., 48 FLRA 31, 38-39 (1993) (proposal providing for specific means of how paychecks would be delivered, and contract provision providing for specific means of how paychecks would be delivered and process for seeking exceptions to listed means).

      Consistent with the foregoing, the Authority has found proposals not to be expressly contained in contract
[ v61 p442 ] provisions where the proposals did not modify and/or conflict with the express terms of the contract provisions even if the proposals concerned the same general range of matters addressed in the provisions. See, e.g., United States Dep't of the Treasury, IRS, 56 FLRA 906, 911-12 (2000) (employees' relocations within a building were not expressly contained in provision involving, among other things, changes in post-of-duty); United States Customs Serv., Customs Mgmt. Ctr., Miami, Fla., 56 FLRA 809, 814 (2000) (administrative leave to attend and participate in a particular athletic competition was not expressly contained in provisions discussing circumstances under which occasional administrative leave would be provided and providing for excused time for exercise); Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 43, 46-47 (1998) (videotaping employee interviews was not expressly contained in provision setting forth employees' right to verbatim transcript of any interview for which a "tape recording" or stenographic record was made), decision after remand, 56 FLRA 398 (2000) (Chairman Wasserman concurring).

      The Agency correctly asserts that Article 67, Section 3 of the parties' agreement addresses the effects of developmental training delays. In this regard, Article 67, Section 3 addresses additional time for an employee to complete his or her developmental training. The proposal addresses a different matter. Specifically, the proposal addresses compensation that an employee will receive after he or she completes his or her developmental training and is certified. The proposal would not modify or otherwise conflict with the express terms of Article 67, Section 3, and a "reasonable reader" would not conclude that Article 67, Section 3 "settles the matter" of whether employees are entitled to receive compensation for promotions that are delayed as a result of ATOP training. SSA, 47 FLRA at 1018. In these circumstances, we find that the Union's proposal is not "expressly contained in" the collective bargaining agreement. Accordingly, we reject the Agency's claim that the proposal is outside the duty to bargain because it is "covered by" the parties' agreement. [n5] 

VII.     Order

      The proposal is within the duty to bargain, and the Agency shall, upon request or as otherwise agreed to by the parties, negotiate over the proposal.

Footnote # 1 for 61 FLRA No. 83 - Authority's Decision

   The wording of Article 67, Section 3 is set forth infra.

Footnote # 2 for 61 FLRA No. 83 - Authority's Decision

   The Authority's two-pronged SSA test is set forth infra.

Footnote # 3 for 61 FLRA No. 83 - Authority's Decision

   We note that the Union asserts that although the proposal "seeks to mitigate the adverse effects flowing from the exercise of the management right to assign and train employees, the proposal itself affects the Agency's right to determine its budget[.]" Response at 13. As the Agency does not assert that the proposal affects management's right to determine its budget, we do not address the Union's budget claim further.

Footnote # 4 for 61 FLRA No. 83 - Authority's Decision

   The Agency does not claim that the proposal is inconsistent with the Back Pay Act, 5 U.S.C. § 5596, or any other "law, rule, government-wide regulation, or Agency regulation[.]" See Statement of Position at 3. The Agency also does not claim that it lacks discretion to bargain over compensation, and the Authority previously has recognized that 49 U.S.C. §§ 106(l) and 40122(a) authorize the Agency to do so. See Prof'l Airways Sys. Specialists, 61 FLRA 97, 99 (2005) (Member Pope dissenting in part on other grounds).

Footnote # 5 for 61 FLRA No. 83 - Authority's Decision

   As it is undisputed that only the first prong of the "covered by" test applies, we do not resolve whether the proposal would be "covered by" the contract under the second prong.