Statement of the Case:

This grievance arbitration matter concerns a challenge by the National Association of Air Traffic Specialists (NAATS), filed on December 9, 1999, to the distribution of 125 newly hired employees into the Flight Service Option by the Federal Aviation Administration (FAA). The Union maintained that the Agency failed to negotiate at the national level the distribution of the employees among the various regions in violation of a November 25, 1994 Memorandum of Understanding negotiated between the parties to address the Consolidation Placement Program (CPP). The CPP Memorandum of Understanding followed an earlier agreement between the parties, dated June 15, 1994, that established procedures for the placement Of air traffic employees, represented by the National Air Traffic Controllers Association (NATCA), into Flight Service facilities constituting the NAATS bargaining unit. NATCA bargaining unit members were reassigned into the NAATS bargaining unit as the result of the decision of the Federal Aviation Administration to contract out the work per\-formed in Level I towers nationwide.

On December 23, 1999, Mr. Raymond B. Thoman, Director of Labor and Employee Relations for the Administration, responded to the grievance. Mr. Thoman denied the grievance, finding that the CPP Memorandum of Understanding only addressed the placement of NATCA bargaining unit personnel into the NAATS bargaining unit, and not the hiring of new employees into the Flight Service Option. Thereafter, the matter moved to binding arbitration in accord with the parties' Agreement.

On May 31, 2000, and again on June 13, 2000, the parties selected the undersigned to be the neutral arbiter of the dispute. A hearing was held on January 11, 2001, at the offices of the Administration in Washington, D.C., at which time the parties were provided a full and fair opportunity to introduce evidence and examine witnesses. The Agency was represented by Mr. Scott Kallman, Labor Relations Specialist, and the Union was represented by Mr. Christopher G. Klemm, Director of Labor Relations. Witnesses were placed under oath for their testimony, but not sequestered. Testifying for the Union was Mr. Walter W. Pike, President and Chief Negotiator for the disputed CPP Memorandum of Understanding. Mr. David Whatley, Jr., Program Director for Aviation and Weather, and former Air Traffic Branch Manager, ATR-130, a member of the Agency's negotiating team for the CPP Memorandum, testified on behalf of the Administration. There were four joint exhibits (J Ex.) and four Union exhibits (U Ex.) entered into the record which was transcribed (Tr.). The Union and the Agency filed post-hearing written briefs on April 19, 2001 and April 20, 2001, respectively. At that time the record was closed.



ISSUE:

The parties stipulated to the following statement of the issue:

Did the Agency violate Section 1(c) of the November 25, 1994, memorandum of understanding? If so, what shall be the remedy?

(Tr. 6)

Relevant Agreement/MOU Provisions:

MEMORANDUM OF UNDERSTANDING: FAA/NAATS (11/25/94) :

This is the complete agreement and understanding of the Parties concerning the FSS/AFSS Consolidation Placement Program (CPP) which resulted from the June 15, 1994 NAATS/FAA agreement concerning the placement of National Air Traffic Controllers Association (NATCA) bargaining unit personnel into the NAATS bargaining unit ....

Section 1. STAFFING

The Parties agree that the following issues are subject to negotiations at the identified level:

c.          National level

            ...

Distribution of bargaining unit employees among regions.

Section 2. CONSOLIDATION

...

Section 3. NATCA UNIT PLACEMENT

...

Section 4. TRAINING FAILURES

...

Section 5. This is the complete understanding of the Parties. This agreement will remain in force and effect until the renegotiation of the national agreement.

(J Ex. 4)

MEMORANDUM OF UNDERSTANDING: FAA/NAATS (6/15/94):

Purpose: This Memorandum of Understanding (MOU) establishes procedures for the placement of National Air Traffic Controllers Association (NATCA) bargaining unit personnel into the NAATS bargaining unit ....

....

(J Ex. 3)

Position of the Parties:

It is the position of the Union that the Agency failed to give notice and negotiate the 1999 distribution of new bargaining unit employees among the FAA regions in violation of the Consolidated Placement Program (CPP) Memorandum of Understanding negotiated between the parties on November 25, 1994. According to the Union, an earlier Memorandum of Understanding, dated June 15, 1994, addressing the placement of NATCA bargaining unit personnel into the NAATS unit was superseded by the November 25, 1994 Memorandum, so that the only language at issue is what is contained in Section 1(c) of the latter Memorandum. The Union argues that the language of Section 1(c), titled Staffing, does not limit its language to the placement of NATCA members, but rather, addresses staffing in terms of "employees", a very broad term that encompasses everything from new employees, current employees and transfers to training failures and the like. In the view of the Union, the Agency could have narrowed such language, but did not, and should not be permitted to gain in arbitration something it did not obtain in the negotiations process. Further, the Union argues that its testimonial evidence is the more persuasive and relevant, offered by the Union's chief negotiator of the Memorandum at issue. Finally, the Union maintains that the Memorandum of November 25, 1994, is a "catch all" agreement, containing numerous subject areas that address issues other than the NATCA personnel placement, and has been characterized as such by the Agency through internal guidance to managers, including a recognition of the obligation to negotiate on issues of staffing in accord with Executive Order instructions. For all of these reasons, the Union seeks to have its grievance sustained.

In response, the Agency agrees that the dispute focuses on the scope of Section 1(c) of the November 25, 1994 Memorandum of Understanding, but argues that while the document may have four sections, the driving force is the introductory paragraph that addresses the placement of NATCA bargaining unit personnel into the NAATS bargaining unit, nothing more. According to the FAA, negotiations over the 1999 distribution of new employee hires into the Flight Service is not required by the November 25, 1994 agreement, and the Agency has declined to so negotiate. In the opinion of the Agency, supported by its negotiations witness, the placement of new hires did not enter the discussions since the Agency, at that time, had not hired new employees into the Flight Service for several years, and there was no expectation that such a hiring would resume at any time in the near future, The FAA notes that there was no permanent hiring of new employees until 1999, the instance cited in the present grievance. The Agency maintains that the historical background of the November, 1994 MOU, following the earlier MOU addressing placement of NATCA members into the NAATS unit, demonstrates that the triggering event for the later MOU was the June 15, 1994 agreement, a position reinforced by the introductory language of the latter document. While acknowledging that the November, 1994 MOU does touch on a few other matters, the Agency argues that the largest, and controlling, part of the substantive portion of the MOU specifically addresses the placement of the former NATCA unit employees into the Flight Service (AFSS); and it was upon this concept only that the parties contemplated the negotiations described in Section 1 of the November 25, 1994 Memorandum. Finally, the Agency argues that the internal FAA memorandum noted by the Union fails to support the Union's argument that the Agency had an obligation to negotiate the placement of newly hired employees; rather it establishes a general obligation on the FAA to negotiate staffing with the Union in accord with the Executive Order (12871) of an earlier administration that has since been cancelled (13203). According to the Agency, there is nothing established beyond a general obligation, leaving the question to what extent that general obligation was fulfilled by the MOU at issue herein. In similar fashion to the Union, the Agency notes that the Union should not be permitted to achieve something, that is, expand the November, 1994, Memorandum, through the grievance arbitration process that was not achieved at the bargaining table. The Agency seeks a denial of the grievance in its entirety.

Discussion and Decision Rationale:

The Union has the burden of proof and persuasion in the matter.

Documentary evidence offered into the record indicated that the parties negotiated a Memorandum of Understanding on June 15, 1994, whose stated purpose was to establish "procedures for the placement of NATCA bargaining unit personnel into the NAATS bargaining unit" (J Ex. 3). Mr. Walter W. Pike signed that document on behalf of the Union, and Mr. Bill F. Jeffers, Acting Associate Administrator for Air Traffic, signed for the Agency. Later that same year, on November 25, 1994, the parties entered into another Memorandum of Understanding, that noted in the introductory paragraph that the document was "the complete agreement and understanding of the Parties concerning the FSS/AFSS Consolidation Placement Program (CPP) which resulted from the June 15, 1994 NAATS/FAA agreement concerning the placement of NATCA bargaining unit personnel into the NAATS bargaining unit" (J Ex. 4). Mr. Pike again signed for the Union; Ms. Susanna Leon-Guerrero signed for the Agency, along with several others, including Mr. David Whatley, Jr. The latter Memorandum is divided into five sections addressing Staffing, the gist of the instant dispute, NATCA Unit Placement, Consolidation, Training Failures and a duration clause (J Ex. 4). Additional documentary evidence indicated that on March 24, 1995, the Agency, in the person of Mr. Douglas R. Murphy, Program Director for Air Traffic Program Management, ATZ-1, issued an informational memorandum to regional air traffic managers to "clarify portions of the CPP agreement with NAATS" (U Ex. 1). In that document, Mr. Murphy states the following:

The CPP agreement evolved because of the need to negotiate with NAATS on the impact of adding personnel to the bargaining unit. While we have historically assigned new hires and reassigned training failures into the flight service option as agency needs dictated, we have not negotiated the impact of these assignments with the union. Several changes have taken place in the flight service environment which led to the agreement to negotiate the staffing issues with the union:

• overall flight service staffing numbers are decreasing,

• resources do not allow the same number of transfers as we have historically been able to accomplish,

• the consolidation program will mean the movement of many flight service personnel in the next year,

• the Executive Order 912871 on labor-management partnerships requires us to negotiate on staffing and numbers, and

• the agency entered into an agreement with the NATCA to reassign persons from the NATCA bargaining unit into the NAATS bargaining unit as a result of contracting out Level I towers.

(U Ex. 1)

On May 30, 1995, the Agency entered into an agreement with the National Air Traffic Controllers Association (NATCA), pursuant to Executive Order ~12871, that provided for negotiations under Article 7 of their Agreement, at the national level, the "distribution of bargaining unit positions among regions" (U Ex. 2). This same language appears in the FAA/NATCA Agreement executed in September, 1998, at Article 94, Staffing, and appears as a numerical outline in a November 13, 2000 Memorandum of Understanding between the FAA and NATCA (U Ex. 3-4). It is clear that the NATCA/FAA language uses the word "positions" rather that the word "employees" found in the NAATS/FAA Memorandum at issue herein; and both NATCA documents post-date the Memorandum of November 25, 1994 between NAATS and the Agency.

Mr. Walter W. Pike, President, NAATS, testified that he was the chief negotiator for the disputed November 25, 1994 MOU, and the purpose of the second negotiations, following the June 15, 1994, Memorandum was to resolve a number of issues "we had pending at that time: the placement of NATCA personnel into our unit, new hire issues, consolidation of various facilities, training failures, hours of operation of facilities, watch schedule coverage at facilities, the distribution of personnel, new hires and otherwise from the regions to the facilities...a number of things we addressed with this (J Ex. 4)" (Tr. 17, .19). In reviewing the November 25, 1994 document, Mr. Pike stated that he chose the word "employees" rather than positions because, from a Union perspective, the Union would be "much better with employees than...positions" since "if you negotiate positions, you may or you may not fill those positions...it basically, in my mind, is meaningless" (Tr. 34, J Ex. 4). Mr. Pike contrasted NAATS language and NATCA language in Section 1(c) of the November 25, 1994 Memorandum as "they have chosen to go with 'positions'...and we use 'employees' (Tr. 28-29, 18, J Ex. 4). Continuing to review the November 25, 1994 Memorandum, Mr. Pike testified that the language of the agreement did not limit NAATS to only negotiating NATCA personnel entering the NAATS unit; and noted that Section 2 regarding consolidation has "nothing to do with NATCA Personnel", nor does coverage noted in Section 1(a) for shift requirements (Tr. 18-20, J Ex. 4). Mr. Pike noted further that while the November 25, 1994 Memorandum was a "direct result" of the June 15, 1994 Memorandum, the subsequent Memorandum superseded the earlier Memorandum (Tr. 16). Finally, Mr. Pike offered that his review of the internal Agency directive of March 24, 1995, indicated that the Agency had "exercised its option in a permissive area of bargaining to negotiate staffing, staffing and numbers" (Tr. 22, U Ex. 1). The Agency did not challenge the testimony of Mr. Pike on cross-examination.

Mr. David Whatley, Jr., Program Director for Aviation and Weather, was a Branch Manager in ATR-130 in 1994 when he sat on the Agency bargaining team leading to the November 25, 1994 Memorandum at issue. Mr. Whatley stated that the Agency failed to negotiate with NAATS initially about the placement of NATCA unit members into the NAATS bargaining unit, an "oversight" that led to the June 15, 1994 Memorandum (Tr. 40, J Ex. 3). Mr. Whatley added that the disputed language of Section 1(c) of the November 25, 1994 Memorandum was "addressing specifically the placement of NATCA bargaining unit employees into the NAATS bargaining unit as a result of the contracting out activity" (Tr. 41, 52). Mr. Whatley noted that the parties used the word "employees" and not "positions" because it was a "common term" and "we were not dealing with positions from the standpoint of authorization..." (Tr. 51-52, J Ex. 4). In addition, Mr. Whatley offered that in 1994, "new hires were not a part of this discussion...we were in the midst of the consolidation effort...we were not hiring...from the outside...there was no expectation on the agency's part at that time that there would be any hiring" (Tr. 41-42, 52-54). Further, Mr. Whatley opined that the use of the word "positions" would be more beneficial to the Union than the use of the word "employees", a "counter position" from that taken by Mr. Pike (Tr. 46-47, J Ex. 4, U Ex. 2). Finally, Mr. Whatley noted that the November, 1994 MOU overrides the June 15, 1994 MOU (Tr. 47).

It is clear from the foregoing evidence and argument of the parties that the essence of the instant dispute lies in the language of the November 25, 1994 Memorandum of Understanding, and not in the June 15, 1994 MOU or the subsequent MOUs between �the Agency and the National Air Traffic Controllers Association (NATCA). The Agency argues that the introductory paragraph is controlling for the remainder of the three page document, but does admit that Memorandum addresses other matters beyond the NATCA transfer of employees into the NAATS bargaining unit. In fact, the Memorandum addresses several areas that the Agency has not demonstrated through the testimony of Mr. Whatley are connected to, or controlled by, the introductory language. Here, the testimony of Mr. Wally Pike must be considered persuasive, that is, the Union chose the second set of negotiations over the NATCA move of personnel to raise other areas of concern. It must be noted that the language of Section 1(c) is less than artful in addressing what types of employees are subject to negotiations at the national level, but the Agency has not been persuasive that Such negotiations are restricted to NATCA employees entering the NAATS bargaining unit, notwithstanding the testimony of Mr. David Whatley that new employees joining the Flight Service, in 1994, was remote, at best, as a concept. Perhaps the most persuasive evidence is contained in the March 24, 1995 FAA Memorandum, issued to clarify the FSS/AFSS Consolidation Placement Program (CPP) Agreement (U Ex. 1). That document, while noting that the Agency had not negotiated the impact of the assignment of new hires or reassigned training failures into the NAATS bargaining unit in the past, continues by identifying at least five changes that have taken place in the Flight Service environment that led to the "agreement to negotiate the staffing issues with the union" (U Ex. 1). The term "staffing issues" is not further defined. The Agency argues that since the term does not specifically address new hires, as a staffing issue, such an activity, as in 1999, is thereby excluded from negotiations. Yet, a careful reading of the Agency guidance indicates that the "several changes" mentioned as leading to an agreement "to negotiate" address matters other than NATCA persons being reassigned into the NAATS bargaining unit; and include reference to the Presidential Executive Order Number 12871, that is also a driving force for the negotiations of staffing issues with the controllers' union, NATCA (U Ex. 2-4). It is in this document of the Agency that the Union finds support, albeit obliquely, for its argument that the language of Section 1(c) of the November 25, 1994 Memorandum of Understanding is not restricted only to NATCA members entering the NAATS unit (J Ex. 4, U Ex. 1).

On balance, and for these reasons, the undersigned concludes that the Union has met its burden of proof and persuasion that the Agency violated the November 25, 1994 MOU by not providing notice and bargaining over the placement of 125 new hires into the Flight Service in 1999 to the extent provided by statute. The December 9, 1999 grievance of the Union is granted to that extent. The parties are to conduct negotiations forthwith over such placement.

AWARD

The December 9, 1999 grievance of the National Association of Air Traffic Specialists (NAATS) is GRANTED in accord with the foregoing opinion.