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 FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION Union and FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION Activity Case No. 0-AR-2 DECISION 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 Him. This Does Not Constitute a Basis for Reviewing Arbitration Awards. United States Army Missile Materiel Readiness Command, Supra. Therefore the Union's Exception Provides No Basis for Acceptance of its Petition under Section 2411.32 of the Amended Rules. Accordingly, the Union's Petition for Review of the Arbitrator's Award Is Denied Because it Fails to Meet the Requirements of Section 2411.32 of the Amended Rules for Acceptance by the Authority of a Petition for Review of an Arbitrator's Award. Issued, Washington, D.c., April 10, 1980 Ronald W. Haughton, Chairman Henry B. Frazier Iii, Member Leon B. Applewhaite, Member Federal Labor Relations Authority /1/ Article 40 of the Parties' Agreement States in Pertinent Part: . . . . Section 3. To the Extent That Operational Requirements Permit, Employees Scheduled to Work On Actual Established Legal Holidays or Days Observed in Lieu of Such Holidays Shall Be Given Such Day off If They So Request Section 4. A List of Employees Assigned to Work Legal Holidays and Days in Lieu of Holidays Shall Be Posted at Least Twenty-one (21) Days in Advance, And These Assignments, Once Posted, Will Not Be Deleted Without Consent of the Employees Involved. /2/ the Agency Policy Referred to by the Arbitrator Is as Follows: 81. Basic Policy. Employees Will Not Be Assigned to Duty on Holidays Unless Work Is Necessary for the Protection of Life or Property, Is in the Interest Of the General Public, or Is Necessary to Meet an Emergency in Which the Government Requires The Completion of a Particular Job Without Delay. In Line with this General Policy, as Many Employees as Feasible In Continuously Operating Activities (I.e., Activities Open 16 to 24 Hours a Day, 7 Days a Week) Will Be Excused from Duty on a Holiday; and as Many Employees As Necessary to Meet Operating Requirements Will Be Required to Work . . . /3/ the Union Refers, in Support of this Argument, to Article 55 of The Parties' Agreement Which, as Set Forth by the Arbitrator, Provides In Part: Any Provision of this Agreement Shall Be Determined a Valid Exception To and Shall Supersede Any Existing Faa Rules, Regulations, Orders and Practices Which Are in Conflict with The Agreement.