[ v60 p609 ]
60 FLRA No. 123
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
(Union)
and
UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
(Agency)
0-NG-2748
_____
DECISION AND ORDER
ON NEGOTIABILITY ISSUES
February 2, 2005
_____
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 three proposals. For the reasons that follow, we find that the proposals are outside the duty to bargain. Accordingly, we dismiss the petition for review.
II. Proposals [n1]
Proposal 1
If management assigns a bargaining unit ATSS [Airways Transportation Specialists] to perform any work involving the installation, maintenance or restoration of FTI [FAA Telecommunications Infrastructure] equipment or services covered by the outside contractor's service contract, a management official, upon written request from the ATSS and/or his/her Union representative, will promptly provide written confirmation of the work assignment in writing.
Proposal 2
When FTI preventative maintenance activities are not scheduled at least ten (10) days in advance as required in the contractor's statement of work (SOW), the appropriate NAS/NOM [National Airspace Specialist/NAS Operations Manager] will be advised promptly of the SOW deviation by a management official. If, based on operational assessment, the NAS/NOM recommends that management not approve the contractor's request to perform FTI maintenance work outside the schedule set forth in the SOW and a management official approves the contractor's request, a management official will promptly provide the NAS/NOM, upon written request, with a copy of management's approval of the contractor's request.
Proposal 3 [n2]
Should an ATSS be required to provide facility escort for contractor personnel and, as a result, is unable to perform his/her normal duties, the ATSS will make an appropriate entry in the MMS and LDR. If management directs an ATSS to leave the contractor personnel unattended to perform other duties, upon written request, a management official will provide the ATSS with confirmation of the direction in writing. [n3]
III. Meaning of the Proposals
A. Proposal 1
Proposal 1 would apply when management assigns an ATSS to perform work that is supposed to be done by a contractor. Under the proposal, upon request of the ATSS or the ATSS's Union representative, "a management official will promptly provide written confirmation of the work assignment." Record of Post-Petition Conference at 2. The parties disagree over the meaning of the terms "promptly" and "management official." The Union asserts that "promptly" means "within a reasonable period of time under the circumstances[,]" while the Agency argues that it means "more immediate [ v60 p610 ] than a reasonable time." Id. The Union argues that the term "management official" is "intended to be broad so as not to specify a particular official[,]" while the Agency contends that it means a supervisor. Id.
If a proposal is silent as to a particular matter, the Authority will adopt a union's statement clarifying the matter if it is otherwise consistent with the wording of the proposal. See, e.g., Nat'l Educ. Assoc., Overseas Educ. Assoc., Laurel Bay Teachers Assoc., 51 FLRA 733, 737 (1996) (Laurel Bay). Because the Union's explanations of the terms in the proposal are consistent with the wording of the proposal, we adopt them.
B. Proposal 2
Proposal 2 addresses situations where work performed by a NAS or a NOM is disrupted by contractor personnel who have been permitted by management to perform their work outside of the requirements set forth in their statement of work (SOW). See Record of Post-Petition Conference at 2-3. According to the Union, under this proposal, when a contractor asks a management official to deviate from the time frames in the contractor's SOW, the management official will promptly advise the NAS or NOM of the requested deviation. Where, based on operational assessment, the NAS or NOM recommends that the management official deny the contractor's requested deviation but the management official nonetheless approves the requested deviation, the management official will, upon written request, promptly give the NAS or NOM a copy of management's approval of the contractor's request "if the approval exists in written form." Id. at 3.
As they did in Proposal 1, the parties disagree about the meaning of "management official" and "promptly." The Agency also contends that Proposal 2 would require management to give a NAS or NOM written approval in all instances where management has approved a contractor's request to deviate from the SOW, even if the approval was only given verbally. See id.
As with Proposal 1, we will use the definition of "promptly" and "management official" set forth by the Union because the Union's explanation of the meaning of those terms is consistent with the wording of the proposal. See Laurel Bay, 51 FLRA at 737. For the same reason, we adopt the Union's explanation that the Agency would have to provide written approval only if the approval exists in written form.
C. Proposal 3
Proposal 3 operates when management directs unit employees to escort contractor personnel around the Agency's air traffic facilities. In this situation, if a management official directs an ATSS to leave contractor personnel unattended to perform other duties, the disputed portion of the proposal requires a management official, upon written request, to provide the ATSS with confirmation of that direction in writing.
IV. Positions of the Parties
A. Agency
1. Proposal 1
The Agency asserts that Proposal 1 is contrary to management's right to determine the particular duties and work to be assigned and the particular employees or positions to which it will be assigned. The Agency asserts that by requiring a management official to inform the ATSS in writing, Proposal 1 constitutes an assignment of work to the ATSS's supervisor because the supervisor is "the only one" who would direct a bargaining unit employee to perform any work involving the installation, maintenance, or restoration of FTI equipment, or the services covered by an outside contractor. Statement of Position (SOP) at 9.
In addition, the Agency argues that Proposal 1 does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute. The Agency contends that the Union has not described what, if any, adverse effects the implementation of FTI would cause unit employees, "beyond mere speculation" that implementation of FTI "might affect" performance evaluations, awards, or discipline. SOP at 10. Citing NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG), the Agency further argues that the adverse effects asserted by the Union are "highly speculative." SOP at 11. In this connection, the Agency asserts that the Union has not demonstrated that "employees would be given negative performance ratings" or that performance evaluations, awards, or discipline "have been or will ever be impacted by the implementation of FTI." Id. As such, the Agency argues that Proposal 1 is not an appropriate arrangement because it is not "tailored to compensate or benefit employees suffering from actual adverse effects." Id.
The Agency also asserts that it has no duty to bargain over Proposal 1 because the assignment of work involving the installation, maintenance, or restoration of equipment or services, whether or not such work is covered by an outside contractor's service contract, is "covered by" the parties' agreement. Id. at 7. [ v60 p611 ]
2. Proposal 2
The Agency asserts that Proposal 2 affects management's right to determine its working arrangements with contractors in the course of contracting out work. SOP at 13. According to the Agency, the Union has failed to identify any reason why unit employees would need to track deviations from the contractor's SOW, "[o]ther than for use in the performance review and SCI processes[.]" Id. Also, as it argued with respect to Proposal 1, the Agency contends that the procedures and documentation for the performance evaluation and SCI processes are covered by the parties' agreement.
The Agency further argues that Proposal 2 is contrary to management's right to determine the particular duties and work to be assigned and the particular employees or positions to which it will be assigned. Id. at 15. As with Proposal 1, the Agency asserts that Proposal 2 is an assignment of work to the ATSS' supervisor because it "could only be the supervisor" who would direct a bargaining unit employee to interrupt his or her duties to allow a contractor to perform work. Id.
Also, as with Proposal 1, the Agency asserts that Proposal 2 does not constitute an appropriate arrangement because the adverse effect asserted by the Union -- that employees would be given negative performance ratings because of reassignment -- is "highly speculative[.]" Id. at 16. The Agency argues that the Union "has not demonstrated a reasonable likelihood that [A]gency representatives would order an employee to interrupt their work in deference to contractor activities and then penalize them for it by giving them a bad performance review or denial of a superior contribution award." Id. The Agency further contends that the Union has offered no evidence that performance evaluations, awards, or discipline "have been or will ever be impacted by the implementation of FTI." Id. at 17.
3. Proposal 3
With regard to Proposal 3, the Agency makes arguments similar to those it raised regarding Proposals 1 and 2. The Agency asserts that Proposal 3 affects management's right to determine the particular duties and work to be assigned and the particular employees or positions to which it will be assigned. Further, in response to the Union's assertion at the post-hearing conference that "if management instructed the ATSS to discontinue contractor escort duties it was a security issue[,]" the Agency asserts that it is well established that internal security practices are non-negotiable under § 7106 of the Statute. Id. at 21. Finally, the Agency asserts that Proposal 3 is not an appropriate arrangement because the Union has failed to establish "a reasonable likelihood that [A]gency representatives would order an employee to leave their contractor escort duties to perform other work and then penalize them for it by giving them a bad performance review or denial of a superior contribution award." Id. at 22. In this connection, the Agency also asserts that the assignment of the work in question, as well as SCI awards and performance evaluations, are covered by the parties' agreement.
B. Union
1. Management's rights
The Union "does not dispute that" the proposals affect management rights. Union Response to Agency SOP (Union Response) at 6. Rather, the Union claims that the proposals are "negotiable procedures and/or appropriate arrangements." Id.
The Union does not present any argument in support of its claim that the proposals are negotiable procedures. As to its appropriate arrangement claim, the Union argues that the proposals are arrangements because employees can be adversely affected in two ways when management "exercises its right to contract out bargaining unit work and then either assigns bargaining unit employees to perform that same work, agrees to a deviation in the SOW over the NAS/NOM's objections, or directs an employee to leave a contractor unattended contrary to policy[.]" Id. at 7. The Union asserts that these adverse effects are "not speculative[,]" but "reasonably flow from the exercise of management's right to take the actions described in the proposals." Id. at 8.
First, the Union asserts that employees could be adversely affected by receiving "unacceptable performance reviews" if they are unable to complete their work assignments because they are required to perform contractor work or have had their scheduled work disrupted due to a SOW deviation. Id. at 7. According to the Union, having written documentation to explain why an employee was unable to complete normal work assignments "could assist the employees in obtaining favorable performance reviews or overturning unfavorable reviews." Id. The Union asserts that documentation will help employees "successfully contest disciplinary action taken against them" if a contractor is left unattended. Id.
Second, the Union contends that the proposals are designed to "facilitate use of" the Superior Contribution Increase (SCI) system, which it asserts "is a component of the [parties' negotiated] pay system[.]" Id. at 8. In this regard, the Union asserts that under the SCI system, [ v60 p612 ] performing work that is assigned to a contractor could be recognized as a contribution that is "over and above" normal expectations and, therefore, is "useful in fulfilling the descriptors in all three SCI criteria." Id.
The Union also contends that none of the proposals excessively interferes with management's rights. As to Proposal 1, the Union asserts that it does not require management to do anything unless it receives a written request from an employee or the employee's Union representative. The Union asserts that, at that point, the Agency "only needs to confirm in writing that the employee was assigned the work covered by the service contract" and that this could be accomplished "by way of a short email message that would take only a brief time to prepare and send." Id. at 9.
As to Proposal 2, the Union alleges that it does not affect the Agency's working arrangements with contractors because the decision to grant or withhold approval of the contractor's request to deviate from the SOW "continues to rest exclusively with management." Id. at 10. According to the Union, the proposal only requires notice of the deviation request to the NAS or NOM affected by the contractor's request and a copy of the deviation approval, if in writing, at the request of the NAS or NOM.
Finally, the Union disputes the Agency's claim that Proposal 3 is nonnegotiable because it deals with a security practice. The Union asserts that, under this proposal, management remains "free to direct an employee to leave a contractor unattended in an FAA facility." Id. According to the Union, the proposal requires only that this direction be confirmed in writing, upon written request, and this requirement does not affect management's right to determine its internal security practices.
2. "Covered by"
The Union disputes the Agency's reliance on the "covered by" doctrine. The Union argues that the duties addressed by the proposals are not "covered by" the parties' agreement within the meaning of the "covered by" doctrine.
V. Analysis and Conclusions
A. The proposals affect management's rights.
As set forth above, the Union does not dispute the Agency's contention that the proposals affect management's rights under § 7106(a). See Union Response at 6. Where a union does not dispute an agency's contention that its proposals affect management's rights under § 7106(a), the Authority will find that the proposal affects those rights. See Prof'l Airways Sys. Specialists, 59 FLRA 25, 28 (2003) (PASS); AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 451-52 (1999), petition for review denied sub nom. AFGE, Council of GSA Locals, Council 236 v. FLRA, Case No. 99-1244 (D.C. Cir. Mar. 7, 2000). Therefore, the negotiability of these proposals hinges on whether they constitute procedures under § 7106(b)(2) of the Statute or appropriate arrangements under § 7106(b)(3) of the Statute.
B. The proposals are not procedures.
The Union asserts that the proposals are "negotiable procedures . . . ." Union Response at 6. However, the Union provides no argument or authority to support its claim. Accordingly, we reject the Union's claim as a bare assertion and do not further address whether the proposals are within the duty to bargain under § 7106(b)(2). See, e.g., AFSCME, Local 2830, 60 FLRA 124, 127 (2004).
C. The proposals are not appropriate arrangements.
In determining whether a proposal is an appropriate arrangement, the Authority applies the test set forth in KANG. Under KANG, the Authority initially determines whether a proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992) (Treasury). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address purely speculative or hypothetical concerns do not constitute arrangements. See PASS, 59 FLRA at 28; NTEU, 55 FLRA 1174, 1187 (1999). The alleged arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management's rights. See NFFE, Local 2015, 53 FLRA 967, 973 (1997). If a 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 rights. See KANG, 21 FLRA at 31-33.
As described more fully below, the Union claims that the proposals are appropriate arrangements intended to ameliorate the adverse effects flowing from the Agency's implementation of FTI. [ v60 p613 ]
1. Proposal 1
With respect to Proposal 1, the Union asserts that employees who are unable to complete their normal work assignments because they are required to perform contractor work "could be adversely affected by receiving unacceptable performance reviews." Union Response at 7. However, the Union does not offer any evidence to demonstrate that this adverse effect is reasonably foreseeable. In this regard, the Union has failed to demonstrate that the Agency's implementation of FTI will result in employees failing to complete their normal work assignments as a result of having to perform contractor work. Accordingly, the Union has also failed to demonstrate that it is reasonably foreseeable that the implementation of FTI will result in employees receiving unacceptable performance reviews for failing to complete their normal work assignments, as alleged by the Union. As such, the adverse effect alleged by the Union -- employees receiving unacceptable performance reviews -- is speculative.
As the concern this proposal is intended to address is speculative, the proposal does not constitute an arrangement within the meaning of § 7106(b)(3) of the Statute and, as such, cannot be considered an appropriate arrangement. See, e.g., PASS, 59 FLRA at 29 (dismissing petition for review where adverse effect asserted by union was only speculative); AFGE, Local 2280, Iron Mountain, Mich., 57 FLRA 742, 743 (2002) (AFGE, Local 2280) (dismissing petition for review where adverse effects asserted by union were not reasonably foreseeable); NTEU, 55 FLRA at 1187 (dismissing petition for review where adverse effect asserted by union was speculative).
Moreover, insofar as the Union asserts that Proposal 1 benefits employees by documenting employees' time spent performing contractor-related activities, thereby helping employees to satisfy the criteria for earning additional pay in the form of SCIs, this does not establish that the proposal is an appropriate arrangement. In this regard, the proposal would confer a benefit on employees and the only adverse effect would flow from the Agency's denial of that benefit rather than "from the exercise of a protected management right." Treasury, 960 F.2d at 1073. As such, the Union's assertion fails to establish that the proposal is an appropriate arrangement. See id. (no appropriate arrangement where proposal would confer a benefit and the only adverse effect flowed from management's denial of the proposal).
2. Proposal 2
With respect to Proposal 2, the Union asserts that employees who are unable to complete their normal work assignments because they have had their scheduled work disrupted due to a management-approved deviation to a contractor's SOW "could be adversely affected by receiving unacceptable performance reviews." Union Response at 7. However, as with Proposal 1, the Union does not offer any evidence to demonstrate that this adverse effect is reasonably foreseeable. In this regard, the Union has failed to demonstrate that the Agency's implementation of FTI will result in employees failing to complete their normal work assignments as a result of having their scheduled work disrupted due to an SOW deviation. Accordingly, the Union has also failed to demonstrate that it is reasonably foreseeable that the implementation of FTI will result in employees receiving unacceptable performance reviews for failing to complete their normal work assignments, as alleged by the Union. As such, the adverse effect alleged by the Union -- employees receiving unacceptable performance reviews -- is speculative.
As the concern this proposal is intended to address is speculative, the proposal does not constitute an arrangement within the meaning of § 7106(b)(3) of the Statute and, as such, cannot be considered an appropriate arrangement. See, e.g., PASS, 59 FLRA at 29; AFGE, Local 2280, 57 FLRA at 743; NTEU, 55 FLRA at 1187.
Moreover, as with Proposal 1, the Union's assertion that Proposal 2 benefits employees by documenting employees' time spent on contractor-related activities, thereby helping employees to satisfy the criteria for earning additional pay in the form of SCIs does not establish that the proposals are appropriate arrangements. As previously stated, the proposal would confer a benefit on employees and the only adverse effect would flow from the Agency's denial of that benefit rather than "from the exercise of a protected management right." Treasury, 960 F.2d at 1073. As such, the Union's assertion fails to establish that the proposal is an appropriate arrangement. See id.
3. Proposal 3
With respect to Proposal 3, the Union argues that employees who leave a contractor unattended, in violation of Agency policy, "could be subject to discipline." Union Response at 7. However, the Union does not offer any evidence to demonstrate that this adverse effect is reasonably foreseeable. In this regard, the [ v60 p614 ] Union has not shown that the Agency's decision to implement FTI would require employees to leave contractor personnel unattended. Moreover, even if the Agency required employees to leave contractor personnel unattended, the Union has not demonstrated that it is reasonably foreseeable that the implementation of FTI will result in employees receiving discipline for leaving contractors unattended, as asserted by the Union. As such, the adverse effect alleged by the Union -- employees receiving discipline -- is speculative.
As the concern this proposal is intended to address is speculative, the proposal does not constitute an arrangement within the meaning of § 7106(b)(3) of the Statute and, as such, cannot be considered an appropriate arrangement. See, e.g., PASS, 59 FLRA at 29; AFGE, Local 2280, 57 FLRA at 743; NTEU, 55 FLRA at 1187. [n4]
VI. Order
The petition for review is dismissed.
Footnote # 1 for 60 FLRA No. 123 - Authority's Decision
The Union requests that the Authority sever and consider separately Proposals 1, 2, and 3. Under § 2424.2(h) of the Authority's Regulations, severance "means the division of a proposal or provision into separate parts having independent meaning" and, in effect, "results in the creation of separate proposals or provisions." 5 C.F.R. § 2424.2(h). In the present case, since Proposals 1, 2, and 3 are already separate proposals, severance does not apply.
Footnote # 2 for 60 FLRA No. 123 - Authority's Decision
Only the italicized portion is in dispute.
Footnote # 3 for 60 FLRA No. 123 - Authority's Decision
The Union requests severance of the two sentences in Proposal 3. As the Agency does not object to the negotiability of the first sentence of Proposal 3, see SOP at 2, severance is not necessary. See AFGE, Local 12, 60 FLRA 533, 537 n.6 (2004).
Footnote # 4 for 60 FLRA No. 123 - Authority's Decision
As the proposals do not constitute arrangements, there is no need to address whether the proposals excessively interfere with the exercise of management's rights. There is also no need to address the parties' remaining arguments.