Federal Aviation Science and Technological Association (Union) and Federal Aviation Administration, Department of Transportation (Activity)


[ v03 p39 ]
The decision of the Authority follows:

 3 FLRA No. 6
                                            Case No. 0-AR-2
    This Matter Is Before the Authority on a Petition for Review of the
 Award of Arbitrator Theodore Dyke Filed by the Union under Section
 7122(a) of the Federal Service Labor-management Relations Statute (5
 U.s.c. 7122(a)).
    According to the Arbitrator's Award, the Grievance Arose When the
 Grievant, an Electronics Technician at the Activity, Was Not Assigned to
 Work February 20, 1978, a Federal Holiday (George Washington's
 Birthday), Although She Had Not Asked for the Day off and Other
 Employees in the Crew of Which She Was a Member Were Assigned to Work
 That Day.  A Grievance Was Filed in Which the Grievant Sought "(T)o Work
 Holidays per the Intent of Article 40" of the Collective Bargaining
 Agreement /1/ and Also "Restitution or Other Premium Pay Lost Due to the
 Actions of the Employer." the Matter Was Ultimately Submitted to
 Arbitration.  The Issue as Stated by the Arbitrator Was:
    Did the Employer Violate the Contract by Giving (The Grievant) the
 Day off on February 20,
    Washington's Birthday, a Legally Established Federal Holiday.
    In His Award the Arbitrator Cited Specific Provisions of the Parties'
 Agreement and Found, Contrary to the Union's Position, That the Activity
 Had Not Changed the Basic Watch Schedule in Violation of the Agreement.
 He Further Found That the Activity Had Not Violated Article 40 of the
 Agreement.  In Doing So He Stated:
    The Union Would, by its Posture, Reverse the Contract Language to
 Read, in Effect, That
    '. . . Employees Shall Be Allowed to Work Such Holiday If They So
 Request.' There Is Nothing
    By Way of the Contract or past Practices or in the Negotiations
 Themselves Supportive of this
    Conclusion.  If at All, the Opposite Predominately Prevails.
    The Arbitrator Therefore Denied the Grievance, Concluding That "It Is
 'The Union Which Is Attempting to Gain Through Arbitration Something
 They Could Not Gain During Negotiations.'"
    The Union Filed a Petition for Review of the Arbitrator's Award
 Pursuant to the Rules of Procedure Set Forth in C.f.r.part 2411(1978),
 Which, to the Extent Consistent with the Provisions of Section 7122(a)
 Of the Federal Service Labor-management Relations Statute (5 U.s.c.
 7122(a)) and as Amended by Section 2400.5 of the Transition Rules and
 Regulations of the Federal Labor Relations Authority (44 Fed.reg.
 44741), Remain Operative with Respect to this Case.  The Union Seeks
 Authority Acceptance of the Petition on the Basis of the Exception
 Discussed Below.  The Agency Did Not File an Opposition.
    Pursuant to Section 2411.32 of the Amended Rules and Section 7122(a)
 Of the Statute, the Authority Will Grant a Petition for Review of an
 Arbitrator's Award Where it Appears, Based upon the Facts and
 Circumstances Described in the Petition, That the Award Is Deficient
 Because it Is Contrary to Law or Regulation, or on Other Grounds Similar
 To Those Applied by Federal Courts in Private Sector Labor-management
 Relations Cases.
    In its Exception, the Union Alleges That the Arbitrator's Award Is
 Based upon a Nonfact.  In Support of this Exception the Union Refers to
 A Portion of the Arbitrator's Opinion Accompanying His Award in Which
 The Arbitrator Referred to the Agency's Holiday Policy Contained in
 Agency Regulations /2/ as "Federal Holiday Policy." the Union Thus
 Asserts That Had the Arbitrator Not Made this "Gross Mistake of Fact,"
 Believing the Holiday Policy to Be a Federal Policy Rather than an
 Agency Policy, He "Would Have Been Forced to Rule That Article 40,
 Section 3 Displaced the Faa Holiday Policy Contained in the Faa's
 Internal Regulations, and That .  . . Article 40, Section 3 of the
 Fasta/faa Agreement Should Apply." /3/
    The Federal Labor Relations Authority Will Grant a Petition for
 Review of an Arbitration Award on the Ground That the Award Is Based on
 A Nonfact.  United States Army Missile Materiel Readiness Command
 (Usamircom) and American Federation of Government Employees, Local 1858,
 Afl-cio, Case No. O-ar-7, 2 Flra No. 60 (January 17, 1980).  However, in
 This Case the Union Has Not Described Facts and Circumstances to Support
 Its Exception.  The Union Has Not Shown That the Arbitrator's Reference
 To the Agency "Holiday Policy" as "Federal Holiday Policy" Is the
 Central Fact Underlying His Award and That but for the Arbitrator's
 Misapprehension He Would Have Reached a Different Result.  While the
 Union Argues That but for the Arbitrator's Finding of this Nonfact, He
 Would Have Been Forced to Rule That the Holiday Policy Contained in
 Article 40 of the Agreement Applied, it Is Noted That the Arbitrator
 Specifically Addressed the Application of Article 40 to the Grievance
 And Concluded That "(T)he Union Would, by its (Argued for
 Interpretation), Reverse the Contract Language . . . " and "(T)here Is
 Nothing by Way of the Contract or past Practices or in the Negotiations
 Themselves Supportive of this Conclusion." Thus the Union's Argument in
 Support of its Exception Constitutes Nothing More than Disagreement with
 The Arbitrator's Interpretation and Application of the Agreement
 Provision Before Hi