53:0139(20)NG - - NAGE Local R3-10 and Transportation, FAA, Washington, DC - - 1997 FLRAdec NG - - v53 p139
[ v53 p139 ]
The decision of the Authority follows:
53 FLRA No. 20
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
DECISION AND ORDER ON NEGOTIABILITY ISSUE
June 30, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal, which establishes a Liaison and Familiarization Travel program for Air Traffic Assistants (ATAs).
For the reasons that follow, we find that the proposal is within the duty to bargain.
II. The Proposal
The proposal appears in the Appendix to this decision.(1)
III. Positions of the Parties
The Agency asserts that the proposal is contrary to a Government-wide regulation and, under section 7117(a)(1) of the Statute, is nonnegotiable. Following is the Agency's argument in its entirety:
Executive Order 1274 as modified by EO 12731 and 5 CFR 2635.01 et. seq., Standard[s] of [Ethical] Conduct for Employees of the Executive Branch, a government-wide regulation prohibits the acceptance of gifts by federal employees. Deleting all references to the [Liaison and Familiarization Travel] program as  training programs, results in allowing the ATAs to accept free air travel for personal use. Free air travel for personal use is considered a gift prohibited by the Standards of [Ethical] Conduct for Em[p]loyees of the Executive Branch.
Supplemental Statement of Position at 2.
The Union claims that the proposal would provide ATAs the same conditions of employment as Air Traffic Controllers (ATCs) by offering "familiarization with the operation of the aircraft equipment and communications from the flight crews['] perspective[,]" as well as "the benefit of free air travel." Response at 5. The Union also claims that the program "would enhance the ATA's job performance and promotional opportunities." Id. The Union argues that the "program would no more constitute a gift for ATA[s] than it does for any other employee of the Agency." Reply to Supplemental Statement of Position at 2.
IV. Meaning of the Proposal
The parties have not provided information about the Liaison and Familiarization program for ATCs, and the Union has not explained how the proposal is intended to operate. As plainly worded, Section 1 of the proposal provides, among other things, that ATAs who are "certified" are eligible to participate in "the national standardized familiarization program." Sections 2, 3, and 4 address standards and procedures for administration of the program. Sections 5 and 6 provide for the Agency to approve trips for ATAs on approved leave days, regular days off, and on duty time when the Agency has assigned an ATA duties at the outbound destination.
Under sections 7 and 9 of the proposal, the program would encompass up to eight domestic trips and one international trip each year; Section 8 provides that ATAs may use different air carriers for different segments of a trip. Section 10 states that if there is any commuting involved on a duty trip, it is at no expense to the government. Section 11 requires that ATAs submit a request to the Agency for familiarization travel at least 3 days prior to the day they intend to travel to allow for internal processing of the request. Section 12 provides that an ATA traveling on an assigned duty day will be paid the same amount as if he or she had worked a regular shift, and that an ATA traveling on off-duty days will not receive pay, overtime, or compensatory time.
V. Analysis and Conclusions
The Agency's entire argument is quoted above. As is apparent from examining the argument, the Agency cites only to the Executive Order and its implementing regulations, the Standards of Ethical Conduct for Employees of the Executive Branch (Standards of Ethical Conduct). The Agency does not cite any specific section of either the Executive Order or the regulations in support of its contention that the Union's proposal conflicts with Government-wide regulation, and the Agency does not offer any arguments establishing a basis for its contention.
It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. American Federation of Government Employees, Local 1995 and U.S. Department of Energy, Morgantown Energy Technology Center, Morgantown, West Virginia, 47 FLRA 470, 472 (1993) (Morgantown). A party that fails to assert the specific provisions of law upon which it asserts a proposal is nonnegotiable acts at its peril. Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 820 (1991); see National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) (finding that the parties are responsible for directing the Authority, with as much specificity as possible, to the statutes and regulations relevant to an agency's duty to bargain, and that the Authority is not expected, sua sponte, to locate, analyze and apply all arguably pertinent statutes and regulations).
In this case, the Agency makes only a bare assertion that the proposal conflicts with a Government-wide regulation. We conclude that this bare assertion does not establish that the proposal is outside the duty to bargain and, accordingly, we conclude that the proposal is within the duty to bargain.(2) See Morgantown, 47 FLRA at 472-73.
The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over the proposal.
The Union Liaison and Familiarization Travel proposal provides:
Section 1. All enroute and terminal bargaining unit members who are certified in their respective positions are eligible to participate in the national standardized familiarization program. Once a bargaining unit member achieves eligibility, he/she is not again required to meet this provision.
Section 2. The national standardized program shall include standards and procedures pertaining to familiarization flying in air carriers, private aircraft, and military aircraft. (Air Carrier includes any commercial, commuter flight, or air taxi flights under Title 14, CFR, Parts 121, 135, or 298). No facility or regional office of the Employer shall add, delete, or in any way alter the standardized familiarization program.
Section 3. The Parties recognize that familiarization travel in air carriers involves procedures and internal regulations of individual air carriers. Matters beyond the purview of the Employer include, but are not limited to, number of trips per air carrier per year, dress code in the cockpit, eligibility for participation, and procedures for application to participate. The Parties recognize that any air carrier may suspend or abridge their participation in the familiarization program at any time and that the Employer has no jurisdiction over the conduct of the program by the individual air carriers.
Section 4. The Parties recognize that private and military operators determine their own internal regulations and procedures governing flight familiarization by employees and that such regulations and procedures are beyond the purview of the Employer to change, except in the case where the stated procedures are contrary to the Employer's requirements for employee participation.
Section 5. The employee shall be placed in official travel status and paid per diem, if he/she is assigned duties at the outbound destination as part of the familiarization trip. Approved familiarization visits to other facilities or regional offices at the outbound destination to observe the use of new equipment, facility operations and procedures, etc., during duty days are not assigned duties but shall entitle the employee to be in duty status during his/her regularly scheduled shift. Both Parties recognize that the standard government travel regulations require that employees be placed on official travel status when assigned duties at the destination and, further, that budgetary limitations govern the approval of familiarization travel involving assignment of official duties.
Section 6. The Employer shall approve a familiarization trip for approved leave days, regular days off and for duty days (if the Employer assigns duties at the outbound destination) in any combination.
Section 7. Included in the national standardized program shall be provisions for one (1) foreign overseas trip per calendar year. Foreign seas travel under this Section shall be accomplished and charged as a non-duty trip. Employees eligible under this Article may also travel to overseas domestic locations, but such travel will not be considered as foreign overseas travel. For the purpose of this Agreement, trips to Mexico and Canada shall be considered overseas domestic.
Section 8. Employees are authorized to use different air carriers or the same air carrier for different segments of the same familiarization trip.
Section 9. Except where carriers have indicated they will allow more than one (1) trip per year, employees shall be limited to no more than one (1) familiarization trip per air carrier per year. Employees are entitled to a maximum of eight (8) domestic/overseas domestic trips per calendar year.
Section 10. Commuting trips shall be at no expense to the government. If commuting is involved on any of the duty trips, the employee shall commence his/her familiarization travel within eight (8) hours of the time he/she departs his/her duty station. The employee shall be released from his/her facility and will be considered on duty time for up to two (2) hours so as to reasonably arrive at the departure airport one (1) hour prior to the proposed departure time.
Section 11. Employees are required to submit all familiarization requests to the facility in sufficient time to allow three (3) administrative days for internal processing. This is in addition to the advance notice required by the air carrier and time for mailing.
Section 12. An employee traveling on such a flight on his/her regularly assigned duty day receives the same premium pay he/she would have received had he/she worked his/her regular shift. For one (1) hour prior to the proposed departure time and until one (1) hour after the actual arrival time at the final destination the employee shall be considered on duty time. Premium pay, overtime, or compensatory time/credit hours will not be paid to an employee who is traveling on off-duty days.
(If blank, the decision does not have footnotes.)
1. The proposal has been modified from that which was contained in the Union's petition for review. The Agency asserted that the original proposal was outside the duty to bargain because it mandated specific training assignments and, thereby, violated management's right to assign work under section 7106(a)(2)(B) of the Statute. In response, the Union modified the proposal to eliminate the portions regarding training. The Agency filed a supplemental statement of position in response, and the Union filed a supplemental response. The Agency has not objected to our consideration of the modified proposal. Moreover, the Agency did not renew its argument regarding the right to assign work.
2. Even assuming that it were appropriate to base a negotiability determination on an independent review of the regulation, our cursory review demonstrates that there is an insufficient record on which to determine that the proposal conflicts with the regulation. For example, assuming that the air travel encompassed by the proposal constitutes a prohibited "gift," as defined in 5 C.F.R. § 2635.203(b), the Standards of Ethical Conduct provide that the Government may accept a gift "under the authority of 31 U.S.C. [§] 1353 in connection with an employee's attendance at a meeting or similar function relating to his official duties which takes place away from his duty station." 5 C.F.R. § 2635.203(b)(8). Excluded from the definition of a gift is "[a]nything which is paid for by the Government or secured by the Government under Government contract[.]" 5 C.F.R. § 2635.203(b)(7). In addition, "[g]ifts authorized by supplemental agency regulation" are exempt from the prohibitions of the Standards of Ethical Conduct. 5 C.F.R. § 2635.204(k). There is no basis in the record before us to ascertain whether these pr