FLRA DECISIONS

60 FLRA No. 38.

MINIMUM STAFFING LEVELS

Department of Transportation, Federal Aviation Administration and Professional Airway Systems Specialists, 0-AR-3810, 8/23/04, 60 FLRA No. 38.

Holdings

The Authority turned down the agency's contrary-to-law and essence exceptions to an award in which the arbitrator enforced a "staffing and employment guarantee" provision designed to preclude reductions in force that had been agreed to during the partnership era. FLRA noted that "whether there has been bargaining and agreement on any matters covered under ' 7106(b)(1) rests entirely on the arbitrator's construction of the agreement." Furthermore, "[i]n reviewing an arbitrator's interpretation of an agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector."

Summary

The agreement provision at issue reads, in part, as follows:

1. STAFFING AND EMPLOYMENT GUARANTEE
   
   
   1. During the remainder of fiscal year 2000, the FAA shall have on board no fewer than 6,000 employees in the pay categories 2101, 802, 856, 332 and 334 ("technical employees"). During fiscal year 2001, and thereafter during the remainder of the Agreement, the FAA shall have on board no fewer than 6,100 technical employees. . . . [T]he Agency agrees to provide the Union with a written staffing report showing the total number of technical employees on board, including their job series and region or implementation center. . . .
      
      
   2. The impact of this agreement is to generally preclude reductions-in-force among bargaining unit employees. It effectively guarantees employment for the term of the Parties' national agreement for unit employees, except for termination based on conduct or performance, termination of probationers, or reductions required by Act of Congress.

After receiving the aforementioned staffing report, the union filed a grievance over which employees were to be counted as part of the minimum staffing level of 6,100 technical employees. The matter was referred to arbitration in which the main issue was whether the contract provision dealt only with technical employees located in the agency's regions and "implementation centers" (the union's view), or did one also count the technical employees located at "operational control centers" (OCC) and agency headquarters (the agency's view).

The arbitrator, relying on the provision's reference to "region or implementation center" as well as on the format of the agency's reports (which totaled the number of field technical employees and excluded the number of OCC/HQ technical employees from the total), agreed with the union view and ordered the agency to "immediately take action consistent with law to raise the total number [of] technical employees . . . located in the regional and implementation centers to a minimum staffing level of 6,100 and maintain that level for the duration of the agreement . . . ."

The Authority rejected the agency's essence exception to the award, finding that the agency didn't show that it was "unfounded, implausible or irrational for the Arbitrator to find that the parties intended to count only field technical employees -- employees in the regions and implementation centers -- toward the 6,100 minimum staffing level, rather than the total number of technical employees as the Agency argued."

It also rejected the agency's claim that the award was contrary to law. Since the award affected a management right, FLRA applied the BEP framework and found the award didn't violate management's ' 7106(a) rights. It found, under prong 1, that the award provided a remedy for a violation of a contract provision that was negotiated under ' 7106(b) -- specifically, ' 7106(b)(1). It noted that "bargaining over matters encompassed by ' 7106(b)(1) is permitted notwithstanding that such matters also affects rights under 7106(a) and are enforceable." Thus the award satisfied prong 1 of the BEP framework. It also found that the remedy satisfied prong 2, because it requires the agency to do what it would have done had it complied with the contract provision at issue. It accordingly denied the agency's exceptions to the award.

Comment

The agency had argued that the award was deficient "because it excessively interferes with management's ['] 7106(a) right to assign employees within the organization[.]" When an award affects a management right -- regardless of the extent to which it affects that right -- FLRA applies its two-prong BEP test, in which it first determines whether the remedy ordered by the award enforces, among other things, a provision negotiated under ' 7106(b) and, if it does, whether the remedy reconstructs what management would have done had it not violated the ' 7106(b) provision.

Had the arbitrator treated the violated provision as a ' 7106(b)(3) appropriate arrangement, then FLRA would have applied an excessive interference test to the provision as interpreted by the arbitrator to determine if the provision did, indeed, qualify as an appropriate arrangement. But, as FLRA noted in footnote 2, there was "no claim that the disputed contract provision constitutes an appropriate arrangement[.]" Instead, the award enforced a ' 7106(b)(1) permissive staffing pattern provision and, as FLRA noted, "bargaining over matters encompassed by ' 7106(b)(1) is permitted notwithstanding that such matters also affects rights under ' 7106(a) and are enforceable."

FLRA also disagreed with the agency's claim that the award required either additional regional employees to perform the work currently performed by HQTs technical employees, or a reorganization of the Agency to move HQTs technical employees back to the regions. FLRA said "the award leaves it to the Agency's discretion as to how to maintain the minimum staffing level of employees at its facilities."

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