Federal Aviation Science and Technological Association, Local No. 291, Fort Worth, Texas (Union) and Federal Aviation Administration, Fort Worth Air Route Traffic Control Center, Airway Facilities Sector, Southwest Region, Fort Worth, Texas (Activity) 



[ v03 p545 ]
03:0545(88)AR
The decision of the Authority follows:


 3 FLRA No. 88
 
 FEDERAL AVIATION SCIENCE
 AND TECHNOLOGICAL ASSOCIATION
 LOCAL NO. 291, FORT WORTH, TEXAS
 Union
 
 and
 
 FEDERAL AVIATION ADMINISTRATION,
 FORT WORTH AIR ROUTE TRAFFIC
 CONTROL CENTER, AIRWAY
 FACILITIES SECTOR, SOUTHWEST
 REGION, FORT WORTH, TEXAS
 Activity
 
                                            Case No. 0-AR-13
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR HENRY L. SISK 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, THE DISPUTE BEFORE HIM INVOLVED THE
 QUESTION OF WHETHER EMPLOYEES WHO WORKED ROTATING SHIFTS WERE ENTITLED
 TO A WORKWEEK CONSISTING OF 5 CONSECUTIVE WORKDAYS FOLLOWED BY 2
 CONSECUTIVE DAYS OFF UNDER THE PROVISIONS OF ARTICLE 35, SECTION 1 OF
 THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  ARTICLE 35 STATES
 PERTINENTLY:
 
    SECTION 1.  THE NORMAL WORKDAY SHALL CONSIST OF EIGHT (8) HOURS,
 EXCLUSIVE OF DESIGNATED
 
    MEAL PERIODS, AND THE NORMAL WORKWEEK SHALL CONSIST OF FIVE (5)
 CONSECUTIVE WORKDAYS FOLLOWED
 
    BY TWO (2) CONSECUTIVE DAYS OFF.
 
    SECTION 2.  WORKING HOURS WILL NOT NORMALLY BE SCHEDULED FOR MORE
 THAN FIVE (5) CONSECUTIVE
 
    DAYS WITHIN THE ADMINISTRATIVE WORKWEEK.  HOWEVER, THE PARTIES
 RECOGNIZE THAT SPECIAL
 
    CONDITIONS EXIST IN UNIQUE WORK SITUATIONS WHICH MAY REQUIRE
 VARIATIONS FROM THE NORMAL
 
    WORKDAY AND/OR WORKWEEK.  WHEN SUCH A SPECIAL CONDITION EXISTS, THE
 EMPLOYER SHALL CONSULT
 
    WITH THE UNION WHEN NECESSARY FOR THE PURPOSE OF ESTABLISHING WORK
 SCHEDULES ADAPTABLE TO
 
    THOSE SPECIAL WORKING CONDITIONS.
 
    THE ARBITRATOR STATED THAT THE PARTIES HAD SUBMITTED THE FOLLOWING
 ISSUE TO HIM:
 
    DOES ARTICLE 35, SECTION 1, OF THE AGREEMENT REQUIRE THAT EACH
 EMPLOYEE AT THE FORT WORTH
 
    AIR ROUTE TRAFFIC CONTROL CENTER, AIRWAY FACILITIES SECTOR, BE
 ASSIGNED A WORKWEEK CONSISTING
 
    OF 5 CONSECUTIVE WORKDAYS FOLLOWED BY 2 CONSECUTIVE DAYS OFF?
 
    THE ARBITRATOR DENIED THE GRIEVANCE.  IN HIS ANALYSIS OF THE
 AGREEMENT, THE ARBITRATOR FOUND THAT THERE ARE TWO EXCEPTIONS TO THE
 "NORMAL WORKWEEK" AS DEFINED IN ARTICLE 35, SECTION 1.  THE FIRST
 EXCEPTION, ACCORDING TO THE ARBITRATOR, IS SET FORTH IN ARTICLE 35,
 SECTION 2, AND IS CONCERNED ONLY WITH UNIQUE WORK SITUATIONS.  THE
 SECOND EXCEPTION IS CONTAINED IN ARTICLE 37, WHICH PROVIDES FOR THE
 ESTABLISHMENT OF WATCH SCHEDULES.  ARTICLE 37 STATES:
 
    SECTION 1.  THE BASIC WATCH SCHEDULE IS CONCERNED ONLY WITH REGULAR,
 RECURRING SHIFT OR
 
    WORK ASSIGNMENTS AND IS DEFINED AS THE DAYS OF THE WEEK, HOURS OF THE
 DAY, ROTATION OF SHIFTS,
 
    AND CHANGE IN REGULAR DAYS OFF.  ASSIGNMENTS OF INDIVIDUAL EMPLOYEES
 TO THE WATCH SCHEDULE ARE
 
    NOT CONSIDERED AS CHANGES TO THE BASIC WATCH SCHEDULE.  THE BASIC
 WATCH SCHEDULE WILL NOT BE
 
    CHANGED WITHOUT PRIOR CONSULTATION WITH THE UNION.  IN DEVELOPING THE
 BASIC WATCH SCHEDULE,
 
    THE SECTOR MANAGER/SECTOR FIELD OFFICE CHIEF OR THEIR DESIGNEE SHALL
 MEET WITH THE UNION
 
    REPRESENTATIVE AND CAREFULLY CONSIDER HIS/HER VIEWS AND
 RECOMMENDATIONS CONCERNING THE
 
    SCHEDULE.  THE OBJECTIVE OF THIS MEETING OR MEETINGS SHALL BE TO
 CAREFULLY AND THOROUGHLY
 
    EXAMINE THE ALTERNATIVES AND OPTIONS AVAILABLE AS SUGGESTED BY THE
 UNION REPRESENTATIVE.
 
    SECTION 2.  ASSIGNMENTS TO THE WATCH SCHEDULE SHALL BE POSTED AT
 LEAST FOURTEEN (14) DAYS
 
    IN ADVANCE, OR FOR A LONGER PERIOD WHERE LOCAL CONDITIONS PERMIT.
 THE EMPLOYER RECOGNIZES
 
    THAT CHANGES OF INDIVIDUAL ASSIGNMENTS TO THE WATCH SCHEDULE ARE
 UNDESIRABLE, THEREFORE, THE
 
    EMPLOYER AGREES TO MAKE EVERY REASONABLE EFFORT TO AVOID SUCH
 CHANGES.  IF CIRCUMSTANCES ARISE
 
    WHICH WILL REQUIRE A CHANGE TO THE POSTED SCHEDULE, THE EMPLOYER WILL
 USE ANY OF THE FOLLOWING
 
    ALTERNATIVES TO THE EXTENT FEASIBLE PRIOR TO MAKING THE CHANGE:
 
    (A) OVERTIME;
 
    (B) PERSONNEL ON DETAIL ASSIGNMENTS;
 
    (C) RELIEF TECHNICIANS;
 
    (D) LINE SUPERVISORS OR STAFF;
 
    (E) RESCHEDULING OF TRAINING.
 
    IN THE EVENT NONE OF THE ABOVE ALTERNATIVES ARE FOUND TO BE FEASIBLE,
 THE EMPLOYEE'S POSTED
 
    SHIFT ASSIGNMENT CAN BE CHANGED.
 
    SECTION 3.  THE BASIC WATCH SCHEDULE WILL COVER AT LEAST ONE-YEAR
 PERIOD AND BE POSTED AT
 
    LEAST 90 DAYS PRIOR TO THE BEGINNING OF THE PERIOD.
 
    IN RELATION TO ARTICLE 37, THE ARBITRATOR HELD BASED UPON HIS
 INTERPRETATION OF THAT ARTICLE, "IT MUST BE CONCLUDED THAT THERE HAS
 BEEN NO VIOLATION OF SECTION 1 OF ARTICLE 35 SINCE ARTICLE 37 IS A CLEAR
 EXCEPTION TO THE FIVE AND TWO WORKWEEK IN THAT IT PROVIDES FOR THE
 ESTABLISHMENT FOR BASIC WATCH SCHEDULES CONSISTING OF THE DAYS OF THE
 WEEK, THE HOURS OF THE DAY, ROTATION OF SHIFTS, AND CHANGE IN REGULAR
 DAYS OFF.  THERE IS NO REQUIREMENT THAT THE DAYS WORKED AND THE DAYS OFF
 CONFORM TO A FIVE AND TWO WORKWEEK." THE ARBITRATOR CONCLUDED THAT THE
 AGENCY HAD NOT VIOLATED ANY PORTION OF THE CURRENT AGREEMENT BETWEEN THE
 PARTIES.
 
    THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R. PART
 2411(1978), WHICH, TO THE EXTEND 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 F.R. 44741, REMAIN OPERATIVE WITH RESPECT TO THIS CASE.
 THE UNION SEEKS AUTHORITY ACCEPTANCE OF ITS PETITION ON THE BASIS OF THE
 EXCEPTIONS 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 COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS
 CASES.
 
    IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR WAS
 BIASED.  IN SUPPORT OF THIS EXCEPTION, THE UNION ASSERTS THAT THE
 ARBITRATOR MADE STATEMENTS DURING THE HEARING WHICH, THE UNION ALLEGES,
 DEMONSTRATES THAT THE ARBITRATOR HAD PRECONCEIVED NOTIONS OF WHAT
 CONSTITUTED A GOOD OR BAD WORK SCHEDULE, AND THAT SUCH PRECONCEPTIONS
 INFLUENCED HIS DECISION IN THIS CASE.  THUS THE UNION ASSERTS THAT THE
 DECISION IS BASED ON THE ARBITRATOR'S PARTIALITY RATHER THAN HIS
 INTERPRETATION OF THE CONTRACT.
 
    WITHOUT DECIDING UNDER WHAT CIRCUMSTANCES AN EXCEPTION ALLEGING THAT
 AN ARBITRATOR WAS BIASED OR PARTIAL MAY PRESENT A GROUND FOR REVIEW OF
 AN ARBITRATION AWARD UNDER THE STATUTE, THE UNION'S ASSERTIONS IN THIS
 CASE PROVIDE NO BASIS FOR ACCEPTANCE OF ITS PETITION FOR REVIEW.  THUS
 THE UNION HAS CITED NO PRIVATE SECTOR CASES IN WHICH FEDERAL COURTS HAVE
 SUSTAINED A CHALLENGE TO AN ARBITRATION AWARD ON THE GROUND THAT THE
 ARBITRATOR WAS BIASED BASED UPON REMARKS MADE BY THE ARBITRATOR DURING
 THE COURSE OF A HEARING.  FURTHER, NOTHING IN THE AWARD ITSELF IN ANY
 MANNER SUPPORTS THE UNION'S ASSERTIONS THAT "ABSENT THE ARBITRATOR'S
 PRE-CONCEIVED NOTIONS OF GOOD AND BAD SCHEDULES A DIFFERENT RESULT WOULD
 HAVE BEEN REACHED." THEREFORE, THE UNION'S FIRST EXCEPTION PROVIDES NO
 BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF THE
 AMENDED RULES.
 
    THE UNION'S SECOND EXCEPTION IS THAT THE ARBITRATOR EXCEEDED HIS
 AUTHORITY BY DETERMINING ISSUES NOT INCLUDED IN THE QUESTION SUBMITTED
 TO HIM.  THE UNION ARGUES IN THIS REGARD THAT THE ARBITRATOR WAS ASKED
 IN THE ISSUE SUBMITTED TO HIM TO MAKE DETERMINATIONS CONCERNING ARTICLE
 35, SECTION 1 OF THE AGREEMENT, AND INSTEAD "TOOK IT UPON HIMSELF" TO
 APPLY ARTICLE 37 IN HIS DISPOSITION OF THE GRIEVANCE.  THE UNION REFERS
 TO ARTICLE 56, SECTION 6 OF THE PARTIES' AGREEMENT /1/ AND STATES THAT,
 RATHER THAN CONFINING HIMSELF TO THE PRECISE ISSUE PRESENTED, THE
 ARBITRATOR INCLUDED "AN UNWARRANTED INTERPRETATION AND APPLICATION OF
 ANOTHER ARTICLE."
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHERE IT APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT AN EXCEPTION PRESENTS A GROUND FOR REVIEW SIMILAR
 TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.  COURTS IN THE PRIVATE SECTOR HAVE SUSTAINED CHALLENGES
 TO ARBITRATION AWARDS WHEN IT IS DEMONSTRATED THAT AN ARBITRATOR
 EXCEEDED HIS OR HER AUTHORITY BY DETERMINING AN ISSUE NOT INCLUDED IN
 THE SUBJECT MATTER SUBMITTED TO ARBITRATION.  E.G., LOCAL 791,
 INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO V.
 MAGNAVOX COMPANY, 286 F.2D 465 (6TH CIR. 1961).  THEREFORE, THE FEDERAL
 LABOR RELATIONS AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WHERE IT APPEARS, BASED ON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION FOR REVIEW, THAT THE EXCEPTION
 PRESENTS THE GROUND THAT THE ARBITRATOR EXCEEDED HIS OR HER AUTHORITY BY
 DETERMINING AN ISSUE NOT INCLUDED IN THE SUBJECT MATTER SUBMITTED TO
 ARBITRATION.
 
    IN THIS CASE, HOWEVER, THE UNION FAILS TO DESCRIBE THE FACTS AND
 CIRCUMSTANCES NECESSARY TO SUPPORT ITS EXCEPTION THAT THE ARBITRAT