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62 FLRA No. 24
United States Department of Transportation, Federal Aviation Administration, Alaskan Region and National Air Traffic Controllers Association (Skratek, Arbitrator), 0-AR-4070 (May 31, 2007)
The Arbitrator held that the Agency violated a section of a Memorandum of Understanding (MOU) between the parties concerning a demonstration project, and ordered the Agency to bargain with the Union with respect to operational and/or safety impacts of the project. Further, the Arbitrator stated that if the parties could not agree to a resolution of those impacts, the Agency abide by the terms of the MOU and discontinue the use of certain project equipment and procedures.
The Authority rejected the Agency's claim that the award violated management's rights under § 7106 of the Statute. The Authority noted that in resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, it applies the two-pronged framework established in 53 FLRA 146, 151-54 (1997). Under prong I, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a provision that was negotiated pursuant to § 7106(b) of the Statute. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or provision at issue.
The Authority determined that the Agency failed to demonstrate that the award was deficient under prong I or prong II, and denied the Agency's exceptions. The Authority noted that the Agency conceded that the disputed provision was negotiated under § 7106(b)(1). The Authority stated that although the Agency was not obligated to bargain on the section, once it agreed to that provision, it became fully enforceable through the negotiated grievance procedure despite its possible effect on management's right to assign work.