In the Matter of DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C.
and PROFESSIONAL AIRWAYS SYSTEMS   SPECIALISTS, MEBA, AFL-CIO	Case Nos. 05 FSIP 140/142

ARBITRATOR'S OPINION AND DECISION

    The Department of Transportation (DOT), Federal Aviation Administration, Washington, D.C. (Employer or FAA) and the Professional Airways Systems Specialists, MEBA, AFL-CIO (Union or PASS) filed separate requests for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119.

    After an investigation of the consolidated requests for assistance, which concern ground rules for negotiating a successor collective bargaining agreement (CBA), the Panel directed the parties to mediation-arbitration with the undersigned. Accordingly, on December 20, 2005, a mediation-arbitration proceeding was held in Washington, D.C., with representatives of the parties. During the mediation phase, the parties were able voluntarily to resolve all outstanding issues but one concerning their ground rules agreement.^1/ In reaching this decision, I have considered the entire record in this matter, including the Union's supplemental statement of position, and the Employer's post-hearing submission in response.^2/

BACKGROUND

    The Employer's mission is to provide a safe, secure, and efficient global aerospace system that contributes to national security and the promotion of U.S. aerospace safety. The Union represents approximately 11,000 employees in 5 different certified bargaining units. The CBA involved in these consolidated cases covers approximately 7,000 non-professional safety inspectors in FAA's Airways Facilities (AF) Unit who maintain, repair, and certify all equipment involved in air traffic control. In 2000, their pay was converted from the General Schedule to pay bands under an alternative personnel system Congress permitted FAA to implement in 1996, referred to as the PASS/AF Pay Plan. The parties' CBA was due to expire on July 2, 2005, but remains in effect until a new agreement is reached.^3/

ISSUE AT IMPASSE

    The sole issue in dispute is whether the parties' ground rules should establish a date on which bilateral negotiations over the successor CBA would terminate.

POSITIONS OF THE PARTIES

1. The Union's Position

    The Union contends that it has "no duty to bargain over the Agency's time frame proposal because the subject matter of the proposal is covered by the parties' existing agreement." In this regard, in Article 80, Duration, the parties "agreed that the time frame for bargaining for a successor agreement was open-ended and would continue until 'a new agreement is reached'."^4/ In accordance with the Federal Labor Relations Authority's (FLRA) decision in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993)(SSA), if a matter is "expressly contained" in an existing agreement, as it is here, there is no further obligation to bargain over the matter. Moreover, the FLRA has provided guidance to interest arbitrators where duty-to-bargain questions are raised during the course of impasse proceedings. In Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988), the FLRA stated that, unless it has found a proposal substantively identical to the matter at issue negotiable, the duty-to-bargain question must be "resolved in an appropriate forum before the [interest arbitrator] may proceed to the merits of the impasse." For these reasons, the Union "requests that the [Arbitrator] decline to assert jurisdiction over the Agency's proposal unless and until the matter is decided by an appropriate forum."^5/

2. The Employer's Position

    The Employer proposes that negotiations conclude on July 21, 2006. The Union's assertion that it has no duty to bargain over time frames for negotiations is "an additional attempt to prolong the time before the parties can sit at the table and begin bargaining on the agreement itself." At no point during the parties' recent grievance arbitration hearing did the Union claim "Article 80 covered the time frames for conducting negotiations." To the contrary, one of the exhibits introduced to the grievance arbitrator was an e-mail from the Union's Chief Negotiator stating, in relevant part, that "the reference to 105 days and 60 days in Article 80 just define the notice period for informing the other Party of the desire to negotiate. In our view, it has nothing to do with a time period for completing negotiations for a new CBA." Since there is a duty to bargain under prong 1 of the FLRA's "covered by" doctrine unless the matter is expressly contained in the parties' CBA, and the Union's email establishes that even it believes that Article 80 does not expressly address the matter of negotiation time frames, the Arbitrator "should retain jurisdiction and render a decision" on the merits of the issue.

    A defined date for the conclusion of bilateral bargaining is necessary "given the history of the prior 4½-year contract negotiations and our current experience negotiating ground rules (10 months)." Its adoption would "hold both parties accountable" to bargaining in good faith to reach an agreement diligently without requiring them to commit scare resources for indefinite periods of time. Its proposal also is consistent with a recent Panel ground rules decision that established an 80-calendar day time frame for negotiations on a successor CBA.^6/ An ending date of July 21, 2006, corresponds to the last day of the sixth bargaining session the parties already have agreed to, "can easily be met by any party that is prepared and committed to bargain in good faith," and promotes the statutory requirement of an effective and efficient government.

CONCLUSION

    After careful consideration of the threshold question presented by the Union for the first time during the arbitration proceeding, for the following reason this Arbitrator concludes that its jurisdictional argument is without merit. The Union cites the FLRA's SSA decision to support its position that it has no duty to bargain over the Employer's proposal. In footnote 7 of SSA, however, the FLRA specifically states:

The framework we establish today is intended to apply only to cases in which an agency asserts that it has no obligation to bargain based on the terms of a negotiated agreement. [Emphasis added.]

The Union did not provide, nor has independent research identified, subsequent case law unequivocally establishing that Federal sector unions are entitled to raise covered by arguments. It is not within the purview of this Arbitrator to assume the existence of a union right that, as yet, is unsupported by higher-level authority. Consequently, there appears to be no legal basis for the Union's argument, and no impediment to deciding the merits of the issue before the Arbitrator in this proceeding.^7/

    Turning to the merits of whether the parties' ground rules should establish a termination date for bilateral negotiations, the Arbitrator finds that the establishment of a terminal date is warranted.

    As an initial point, both parties demonstrated a laudable and good faith effort to resolve the bulk of their impasse in the mediation leading to this resolution by resolving all impasses except the matter the Arbitrator rules upon here. Part and parcel of those agreements was the Employer's agreement to the proposed bargaining schedule offered by the Union. That bargaining schedule concludes on July 21, 2006, providing approximately 165 calendar days for collective bargaining. The only matter remaining in dispute at this juncture is whether either party should retain a unilateral right to continue bargaining at that time.

    While FSIP precedent is not binding, the Panel has previously treated a similar issue. Department of Labor and Local 12, AFGE, AFL-CIO, Case No. 03 FSIP 59 (2003). In DOL, the employer proposed a terminal date on bargaining of 75 calendar days from the initiation of bargaining and the union proposed a terminal date not less than 110 calendar days. The Panel ordered a terminal date of 80 calendar days.

    Here, unlike DOL, the parties are bargaining over compensation issues as well as the traditional issues contemplated by Federal sector negotiations. The Arbitrator is persuaded by the Union that these issues are weighty and require greater study. As such, it is more realistic to assume that a greater calendar day period could be required for good faith bargaining to conclude.

    However, the Arbitrator must balance this need against the costs associated with collective bargaining to the taxpayer^8/ and with the guidance of the Act to promote the environment for good faith resolution of collective bargaining. This Arbitrator concludes that 165 calendar days of collective bargaining concluding upon July 21, 2006, is the appropriate balance of those interests.

    First and foremost, an open-ended bargaining continuum here does not "promote" good faith bargaining. Rather, it could facilitate dilatory collective bargaining practices. That is not an object this Arbitrator will endeavor to create.

    Second, a natural consequence of dilatory collective bargaining practices is additional, and unnecessary, cost to the taxpayer. Similarly, that is a result the Arbitrator would seek to curtail, not promote.

    The parties remain free to mutually agree to an extension of the collective bargaining timetable if they believe that is useful. However, absent such mutual agreement, the Arbitrator, as invested with authority from the FSIP, establishes a ground rules termination date upon collective bargaining at the conclusion of the negotiations on July 21, 2006.

DECISION

    The parties shall adopt the Employer's proposal.

_____________________________
The Honorable Mark A. Carter
Arbitrator

January 3, 2006
Charleston, West Virginia

 

1/	Among other things, they agreed to six bargaining sessions, the last of which would end on July 21, 2006.
2/	During the hearing, the Union for the first time raised a jurisdictional argument both orally and in writing.
3/	In this regard, Article 80, Duration, states:
		This Agreement is for a period of five (5) years and shall become effective on the date it is approved by the FAA Administrator or her designee and ratified by the membership of PASS.  It shall automatically renew unless either Party gives written notice to the other of its desire to amend or terminate the Agreement.  The written notice must be given not more than one hundred- five (105) calendar days or not less than sixty (60) calendar days preceding the expiration date of this Agreement.  Within thirty (30) days after receipt of the written notice, the Parties will meet and begin negotiations.  If negotiations are not completed prior to the expiration date, this Agreement shall remain in full force and effect until a new agreement is reached.  If this Agreement is automatically extended under the terms of this Article, the policies of DOT and FAA, current at the time of the extension, shall be controlling in the event of conflict or incompatibility with the Agreement.
4/	In support of its position, the Union refers to the parties’ recent arbitration hearing concerning a national grievance it filed on May 6, 2005, “over the Agency’s alleged misinterpretation of Article 80.”  According to the Union, it is clear from the pending national level grievance that “there is no dispute that the subject matter of the appropriate time frame for the completion of bargaining for a successor [CBA] is covered by the parties’ current agreement.”
5/	The Union also cites cases where the Panel declined to assert jurisdiction over disputes in allegedly similar circumstances.  For example, in Department of the Air Force, Dover Air Force Base, Dover AFB, Delaware and Local 1709, AFGE, AFL-CIO, Case No. 03 FSIP 92 (August 5, 2003), the Panel held that “ . . . where the Employer’s contention that it has satisfied its duty to bargain is clearly arguable, the Panel is constrained to permit the legal matter to be settled in an appropriate forum.”
6/	Department of Labor, Washington, D.C. and Local 12, AFGE, AFL-CIO, Case No. 03 FSIP 59 (August 27, 2003).
7/	Beyond that, and fully cognizant that the Arbitrator is not making a finding regarding the substance of the duty-to-bargain question raised by the Union, the argument offered by PASS fails. The Union argues that Article 80 of the parties' CBA governs here by establishing an "open-ended" bargaining period for negotiating successor agreements. It does not. Article 80 contains common language in Federal and private sector bargaining agreements. It states that absent written notice by one party to another of a desire to amend or terminate the agreement it is automatically extended. Moreover, the article states that its terms shall remain in full force and effect if negotiations are not completed for a successor agreement prior to its scheduled termination date. This language neither expressly addresses, nor seeks to address, the anticipated period of successor negotiations. It merely ensures that the protections of the agreement will not expire during bargaining for a successor agreement. As such, there is no contractual language governing ground rules that define the period for bargaining for a successor CBA and, therefore, no basis for either party to raise a "covered by" argument regarding the subject of a termination date for bargaining.  The Union was apparently aware of this, judging from its statement in the email referenced by both parties in their written submissions.  While PASS’s statement is not dispositive in the Arbitrator’s view, it is correct.  Article 80 has nothing to do with the time period for completing the negotiations of a new CBA.  Thus, if it were necessary to apply the FLRA’s covered-by test to determine the merits of the Union’s jurisdictional argument, and this Arbitrator had the authority to do so, for these plain reasons it would fail.
8/	While the Union debated this figure, the Employer identified that collective bargaining for a national successor agreement with the National Air Traffic Controllers Association ("NATCA") in Reston, Virginia cost approximately $41,000.00 per week.