Federal Aviation Administration, Alaskan Regional Office (Respondent) and Professional Air Traffic Controllers Organization, MEBA, AFL-CIO, Pacific Region (Charging Party)

 



[ v07 p164 ]
07:0164(23)CA
The decision of the Authority follows:


 7 FLRA No. 23
 
 FEDERAL AVIATION ADMINISTRATION
 ALASKAN REGIONAL OFFICE
 Respondent
 
 and
 
 PROFESSIONAL AIR TRAFFIC CONTROLLERS
 ORGANIZATION, MEBA, AFL-CIO, PACIFIC REGION
 Charging Party
 
                                            Case No. 9-CA-211
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1 OF THE AUTHORITY'S RULES
 AND REGULATIONS (5 CFR 2429.1).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND THE BRIEFS SUBMITTED BY
 THE RESPONDENT AND GENERAL COUNSEL, THE AUTHORITY FINDS:
 
    THE COMPLAINT, IN ESSENCE, ALLEGES THAT THE RESPONDENT VIOLATED
 SECTION 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) BY TELLING ITS SUPERVISORS NOT TO APPEAR
 AT AN AUGUST 23, 1979, ARBITRATION HEARING INVOLVING THE GRIEVANCE OF
 BARGAINING UNIT EMPLOYEE RONALD JOVANOVICH, WITH FULL KNOWLEDGE THAT THE
 SUPERVISORS HAD BEEN REQUESTED BY THE UNION TO APPEAR.  IT IS ALLEGED
 THAT SUCH CONDUCT CONSTITUTES A REFUSAL TO NEGOTIATE IN GOOD FAITH WITH
 THE UNION IN VIOLATION OF SECTION 7116(A)(1) AND (5);  A FAILURE TO
 COMPLY WITH THE ARBITRATION PROVISIONS OF SECTION 7121 IN VIOLATION OF
 SECTION 7116(A)(8);  A FAILURE TO PROVIDE INFORMATION NECESSARY AND
 RELEVANT TO PROCESS THE GRIEVANCE IN VIOLATION OF SECTION 7116(A)(1) AND
 (5);  AND, INDEPENDENTLY, INTERFERENCE WITH EMPLOYEE RIGHTS INVIOLATION
 OF SECTION 7116(A)(1).  THE RESPONDENT TAKES THE POSITION, ESSENTIALLY,
 THAT AS THE ARBITRATION PROCEEDING WAS CONDUCTED EX PARTE, IT WAS
 IMPROPER AND UNLAWFUL;  ACCORDINGLY, THE RESPONDENT ARGUES THAT IT WAS
 CORRECT IN ADVISING ITS SUPERVISORS NOT TO APPEAR.
 
    THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
 
    THE RESPONDENT AND THE UNION ARE PARTIES TO A NEGOTIATED AGREEMENT
 THAT PROVIDES FOR SUBMISSION TO AN ARBITRATOR OF QUESTIONS OVER WHETHER
 A GRIEVANCE IS SUBJECT TO ARBITRATION.  HOWEVER, THE AGREEMENT ALSO
 PROVIDES FOR SUBMISSION TO THE ASSISTANT SECRETARY OF LABOR OF QUESTIONS
 OVER WHETHER A GRIEVANCE INVOLVES A MATTER FOR WHICH A STATUTORY APPEALS
 PROCEDURE EXISTS.  SUCH LANGUAGE WAS CONSISTENT WITH SECTION 13(D) OF
 EXECUTIVE ORDER 11491, AS AMENDED, WHICH WAS IN EFFECT AT THE TIME THE
 AGREEMENT WAS SIGNED.
 
    ON JANUARY 4, 1979, THE UNION FILED A GRIEVANCE CONCERNING AN ALLEGED
 VIOLATION OF THE CONTRACT BY THE TERMINATION FROM A PROGRAM OF TRAINING
 OF JOVANOVICH.  THE RESPONDENT DENIED THE UNION'S GRIEVANCE ON JANUARY
 16, 1979, AND, PURSUANT TO THE TERMS OF THE NEGOTIATED GRIEVANCE
 PROCEDURE, THE UNION REQUESTED ARBITRATION OF THE GRIEVANCE BY LETTER
 DATED FEBRUARY 6, 1979.  ON FEBRUARY 13, 1979, JOVANOVICH RECEIVED
 OFFICIAL NOTICE THAT HE WAS TO BE DOWNGRADED FOR HIS FAILURE TO
 SATISFACTORILY COMPLETE TRAINING.  IT APPEARS THAT FURTHER PROCESSING OF
 THE GRIEVANCE WAS HELD IN ABEYANCE WHILE JOVANOVICH APPEALED THE
 DOWNGRADE.  AFTER RECEIVING A RESPONSE TO HIS APPEAL OF THE DOWNGRADE
 FROM THE RESPONDENT'S REGIONAL DIRECTOR, JOVANOVICH APPEALED TO THE
 MERIT SYSTEMS PROTECTION BOARD (MSPB) WHICH SUSTAINED THE DOWNGRADE.
 MSPB'S DECISION WAS NOT APPEALED BY JOVANOVICH OR BY THE UNION (WHICH
 HAD PRESENTED HIS CASE), AND THE DECISION BECAME FINAL ON JULY 23, 1979.
 
    DURING THE WEEK PRECEDING JULY 23, THE UNION'S VICE PRESIDENT AND THE
 RESPONDENT'S CHIEF OF LABOR RELATIONS HAD A TELEPHONE CONVERSATION
 CONCERNING THE PENDING GRIEVANCE AND THE UNION'S REQUEST FOR
 ARBITRATION.  THE UNION CONFIRMED THE CONVERSATION IN A LETTER DATED
 JULY 31, IN WHICH IT TOOK THE POSITION THAT THE ISSUES PRESENTED BY THE
 GRIEVANCE WERE DISTINCT FROM THE ISSUES INVOLVED IN THE MSPB PROCEEDING;
  IN EFFECT, THE UNION RENEWED ITS REQUEST FOR ARBITRATION OF THE
 GRIEVANCE.  ON AUGUST 16, 1979, THE RESPONDENT REPLIED THAT THE
 GRIEVANCE AND THE MSPB PROCEEDING RAISED THE SAME ISSUE AND IT WOULD NOT
 RELITIGATE THE MATTER IN ARBITRATION.
 
    PRIOR TO THIS DATE, AN UNRELATED GRIEVANCE HAD BEEN SCHEDULED FOR
 ARBITRATION ON AUGUST 23, 1979.  ON ABOUT JULY 23, THE UNION HAD
 REQUESTED THAT THE GRIEVANCE IN THE INSTANT CASE BE CONSIDERED ALONG
 WITH THAT UNRELATED GRIEVANCE.  ON AUGUST 16, 1979, THE UNION, REFERRING
 TO THE RESPONDENT'S POSITION THAT IT WOULD NOT RELITIGATE THE MATTER,
 INFORMED THE RESPONDENT BY TELEGRAM THAT BARRING AN APPEAL BY THE
 RESPONDENT TO THE AUTHORITY OVER THE QUESTION OF WHETHER THE MATTER WAS
 COVERED BY A STATUTORY APPEAL PROCEDURE, IT WOULD PROCEED EX PARTE WITH
 THE GRIEVANCE BEFORE AN ARBITRATOR.  THE RESPONDENT REPLIED BY TELEGRAM,
 STATING THAT ITS POSITION REMAINED UNCHANGED AND THAT THERE WAS NO
 PROVISION IN THE PARTIES' NEGOTIATED AGREEMENT PROVIDING FOR EX PARTE
 ARBITRATION.
 
    THE RESPONDENT ALSO WROTE THE ARBITRATOR, ENCLOSING A COPY OF ITS
 TELEGRAM TO THE UNION AND INFORMING THE ARBITRATOR THAT IT HAD NOT
 AGREED TO ARBITRATE THE MATTER AND WOULD NOT BE RESPONSIBLE FOR ANY
 COSTS.  THE RESPONDENT FURTHER EXPLAINED ITS POSITION TO THE ARBITRATOR
 AT HIS REQUEST IN A LETTER DATED AUGUST 17, 1979.  ITS POSITION REMAINED
 THAT THE MATTER IN QUESTION HAD ALREADY BEEN LITIGATED AND THE
 ARBITRATOR THEREFORE HAD NO AUTHORITY TO DECIDE THE ISSUE.
 
    AFTER GIVING CONSIDERATION TO THE RESPONDENT'S POSITION, THE
 ARBITRATOR WENT FORWARD WITH THE PROCEEDING EX PARTE.  HE RULED THAT THE
 CONTRACT GRANTED HIM JURISDICTION TO RULE ON THE ARBITRABILITY QUESTION
 AND FOUND THAT THE GRIEVANCE WAS ARBITRABLE.  HE CONCLUDED THAT HE WAS
 WITHOUT AUTHORITY TO GIVE A REMEDY TO JOVANOVICH, AS THAT ISSUE HAD BEEN
 CONSIDERED AND DECIDED BY THE MSPB.  HOWEVER, THE ARBITRATOR FOUND IN
 FAVOR OF THE UNION WITH RESPECT TO THE ALLEGED VIOLATION OF THE CONTRACT
 AS IT APPLIED TO TERMINATION OF TRAINING.  HE DELAYED HIS AWARD TO GIVE
 THE RESPONDENT A CHANCE TO REOPEN THE HEARING TO PRESENT ITS SIDE OF THE
 QUESTION.  THERE IS NO INDICATION THAT THE RESPONDENT SOUGHT TO REOPEN
 THE HEARING OR THAT EITHER PARTY EXCEPTED TO THE ARBITRATOR'S AWARD.
 
    WITH RESPECT TO THE SPECIFIC UNFAIR LABOR PRACTICES ALLEGED HEREIN,
 THE RESPONDENT ADMITS THAT IT DIRECTED ITS SUPERVISORS PRIOR TO THE
 ARBITRATION HEARING NOT TO APPEAR AS WITNESSES ON EITHER DUTY OR NONDUTY
 TIME.  THE STIPULATION REFLECTS THAT THE UNION WOULD HAVE REQUESTED
 SEVERAL SUPERVISORS TO TESTIFY, BUT THERE IS NO INDICATION OF WHAT THEIR
 TESTIMONY WOULD HAVE COVERED AND THE UNION MADE NO OFFER OF PROOF AT THE
 ARBITRATION HEARING.
 
    TURNING NOW TO THE RELEVANT LAW, THE AUTHORITY HAS COMMENTED ON THE
 APPLICATION OF SECTION 7121 OF THE STATUTE AS FOLLOWS:
 
    (T)O THE EXTENT THAT SECTION 13 OF THE ORDER PROVIDED THAT QUESTIONS
 OF ARBITRABILITY MAY,
 
    OR IN CERTAIN CASES MUST, BE SUBMITTED TO THE ASSISTANT SECRETARY OF
 LABOR, SUCH POLICIES HAVE
 
    BEEN SPECIFICALLY SUPERSEDED BY THE STATUTE.  WHERE COLLECTIVE
 BARGAINING AGREEMENTS CONTAIN
 
    PROVISIONS CONFERRING JURISDICTION UPON THE ASSISTANT SECRETARY TO
 RESOLVE QUESTIONS OF
 
    ARBITRABILITY, SUCH PROVISIONS HAVE BEEN RENDERED VOID BY THE
 STATUTE.  THEREFORE, NEGOTIATED
 
    GRIEVANCE PROCEDURES MAY NOT CONFER JURISDICTION UPON THE ASSISTANT
 SECRETARY OR THE FEDERAL
 
    LABOR RELATIONS AUTHORITY TO RESOLVE SUCH QUESTIONS.  SECTION 7121
 MANDATES THAT EACH
 
    COLLECTIVE BARGAINING AGREEMENT SHALL PROVIDE PROCEDURES FOR THE
 SETTLEMENT OF GRIEVANCES,
 
    INCLUDING QUESTIONS OF ARBITRABILITY AND UNLESS THE PARTIES,
 CONSISTENT WITH LAW, MUTUALLY
 
    AGREE OTHERWISE, SUCH PROCEDURES MUST BE READ AS PROVIDING THAT ALL
 QUESTIONS OF ARBITRABILITY
 
    NOT OTHERWISE RESOLVED SHALL BE SUBMITTED TO ARBITRATION.
 INTERPRETATION AND GUIDANCE, 2 FLRA NO. 32(1979), N. 7.
 
    IN THE CIRCUMSTANCES HEREIN, THE PARTIES' NEGOTIATED AGREEMENT
 PROVIDED THAT ALL QUESTIONS OF ARBITRABILITY, WITH THE EXCEPTION OF
 QUESTIONS INVOLVING STATUTORY APPEALS COVERAGE, BE SUBMITTED TO THE
 ARBITRATOR.  THE STATED EXCEPTION, WHICH IS MERELY A RECITATION OF WHAT
 WAS REQUIRED UNDER SECTION 13(D) OF THE EXECUTIVE ORDER 11491, AS
 AMENDED, WAS SPECIFICALLY SUPERSEDED AND MADE VOID BY THE STATUTE AS
 INTERPRETED BY THE AUTHORITY IN ITS INTERPRETATION AND GUIDANCE CITED
 ABOVE.  AS THE PARTIES HAVE NOT MUTUALLY AGREED TO EXCLUDE ANY OTHER
 MATTERS FROM ARBITRATION, THEIR GRIEVANCE PROCEDURE MUST BE READ AS
 PROVIDING THAT ALL QUESTIONS OF ARBITRABILITY SHALL BE SUBMITTED TO AN
 ARBITRATOR.  THEREFORE, THE ARBITRABILITY QUESTION RAISED BY THE
 RESPONDENT WAS PROPERLY BEFORE THE ARBITRATOR SINCE THE UNION CHOSE TO
 INVOKE THE ARBITRATION PROVISION OF THE AGREEMENT.
 
    THE RESPONDENT ARGUES, HOWEVER, THAT EX PARTE ARBITRATION IS
 PROHIBITED.  THE EXPRESS LANGUAGE OF SECTION 7121(A) AND (B) LEADS TO AN
 OPPOSITE CONCLUSION.  /1/ THUS, SECTION 7121(A)(1) REQUIRED THAT "ANY
 COLLECTIVE BARGAINING AGREEMENT SHALL PROVIDE PROCEDURES FOR THE
 SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY," AND
 SECTION 7121(B)(3)(C) MANDATES THAT UNSETTLED GRIEVANCES SHALL BE
 SUBJECT TO BINDING ARBITRATION "WHICH MAY BE INVOKED BY EITHER THE
 EXCLUSIVE REPRESENTATIVE OR THE AGENCY." THEREFORE, EITHER PARTY MAY
 INVOKE ARBITRATION ON ISSUES INVOLVING, INTER ALIA, QUESTIONS OF
 ARBITRABILITY AND IT FOLLOWS THAT THE OTHER PARTY CANNOT PREVENT THE
 ARBITRATION FROM PROCEEDING BY REFUSING TO PARTICIPATE.  THUS, NOTHING
 IN THE STATUTE RENDERS THE EX PARTE PROCEEDING IMPROPER, AND THE
 RESPONDENT ACTED AT ITS OWN RISK BY NOT PARTICIPATING.  /2/
 
    THE AUTHORITY NOW TURNS TO THE MERITS OF THE SPECIFIC UNFAIR LABOR
 PRACTICES ALLEGED HEREIN.  THE GENERAL COUNSEL CONTENDS THAT THE
 RESPONDENT'S CONDUCT IN REFUSING TO ALLOW ITS SUPERVISORS TO APPEAR AT
 THE ARBITRATION PROCEEDING CONSTITUTED, AMONG OTHER THINGS, A FAILURE TO
 PROVIDE INFORMATION NECESSARY AND RELEVANT FOR THE PROCESSING OF THE
 GRIEVANCE, IN VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE.  THUS, THE
 GENERAL COUNSEL HAS EQUATED THE FURNISHING OF WITNESSES IN AN
 ARBITRATION PROCEEDING TO THE OBLIGATION TO FURNISH INFORMATION
 "REASONABLY AVAILABLE AND NECESSARY . . . FOR NEGOTIATION" AS REQUIRED
 BY SECTION 7114(B)(4)(B) OF THE STATUTE.  /3/ THIS ARGUMENT MUST BE
 REJECTED.  SECTION 7114(B)(4) OF THE STATUTE REQUIRES ONLY THAT AN
 AGENCY FURNISH DATA WHICH IS "NECESSARY FOR FULL . . . NEGOTIATION OF
 SUBJECTS WITHIN THE SCOPE OF COLLECTIVE BARGAINING . . . ." NOT ONLY ARE
 WITNESSES NOT "DATA", BUT THERE WAS NO ATTEMPT TO SHOW THAT THE
 TESTIMONY OF THE SUPERVISORS AT THE ARBITRATION HEARING WAS NECESSARY TO
 THE UNION'S CASE.  THUS, THE RESPONDENT IS NOT REQUIRED PURSUANT TO THIS
 SECTION TO MAKE ITS SUPERVISORS AVAILABLE AT THE UNION'S REQUEST TO
 TESTIFY AT AN ARBITRATION HEARING.  THEREFORE, THE SECTION 7116(A)(5)
 AND (1) ALLEGATION PREMISED ON THIS CONTENTION MUST BE DISMISSED.
 
    THE GENERAL COUNSEL ALSO ARGUES THAT BY REFUSING TO PERMIT ITS
 SUPERVISORS TO APPEAR AT THE ARBITRATION PROCEEDING THE RESPONDENT
 REFUSED TO PARTICIPATE IN THE ARBITRATION AND THEREBY COMMITTED A PATENT
 BREACH OF THE NEGOTIATED AGREEMENT IN VIOLATION OF SECTION 7116(A)(5)
 AND (1).  WE MUST REJECT THIS ARGUMENT OF THE GENERAL COUNSEL.  IN THE
 PARTICULAR CIRCUMSTANCES OF THIS CASE WE CANNOT AGREE THAT THE
 RESPONDENT'S CONDUCT, INVOLVING AN INSTANCE OF NONPARTICIPATION IN A
 SINGLE ARBITRATION PROCEEDING, AMOUNTED TO A VIOLATION OF SECTION 7116
 OF THE STATUTE.  AS NOTED ABOVE, SECTION 7121 MANDATED THAT UNSETTLED
 GRIEVANCES SHALL BE SUBJECT TO BINDING ARBITRATION, WHICH MAY BE INVOKED
 BY EITHER PARTY.  THUS, THE STATUTE MANDATES BINDING ARBITRATION AS THE
 FINAL STEP TO RESOLVE ANY GRIEVANCE NOT SATISFACTORILY SETTLED,
 INCLUDING ALLEGED VIOLATIONS OF NEGOTIATED AGREEMENTS.  ACCORDINGLY,
 WHERE AS HERE, BINDING ARBITRATION IS INVOKED BY ONE PARTY, THE OTHER
 PARTY REFUSES TO PARTICIPATE AND THE ARBITRATOR DETERMINES TO PROCEED EX
 PARTE AND ISSUES AN AWARD, THE REFUSAL BY THE SECOND PARTY TO
 PARTICIPATE DOES NOT CONSTITUTE A REJECTION OF THE COLLECTIVE BARGAINING
 AGREEMENT IN VIOLATION OF SECTION 7116(A)(5) AND (1).  /4/
 
    THE COMPLAINANT ALSO ALLEGES THAT THE RESPONDENT'S CONDUCT
 CONSTITUTED A FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 7121 OF
 THE STATUTE IN GENERAL, WHICH REQUIRES THE ARBITRATION OF DISPUTES, IN
 VIOLATION OF SECTION 7116(A)(8).  /5/ AS NOTED ABOVE, A REFUSAL BY ONE
 PARTY TO PARTICIPATE IN ARBITRATION DOES NOT FRUSTRATE THE PROCEEDING
 WHERE, AS HERE, ONE OF THE PARTIES INVOKED THE ARBITRATION PROCESS AND
 THE ARBITRATOR DETERMINED TO PROCEED EX PARTE.  THUS, RESPONDENT'S
 CONDUCT DID NOT VIOLATE SECTION 7121.  IT FOLLOWS THAT THE RESPONDENT
 DID NOT VIOLATE SECTION 7116(A)(8).
 
    FINALLY, THE COMPLAINT ALLEGES THAT RESPONDENT'S REFUSAL TO PERMIT
 ITS SUPERVISORS TO ATTEND THE ARBITRATION PROCEEDING INTERFERED WITH
 EMPLOYEE RIGHTS AND THUS CONSTITUTED AN INDEPENDENT VIOLATION OF SECTION
 7116(A)(1) OF THE STATUTE.  IN HIS BRIEF AT PAGE 15, THE GENERAL COUNSEL
 ARGUES, INTER ALIA, THAT THE RESPONDENT'S CONDUCT "INTERFERED WITH
 BARGAINING UNIT EMPLOYEES IN THE EXERCISE OF STATUTORY RIGHTS AND HAD
 THE EFFECT OF DISCOURAGING THEM FROM FILING GRIEVANCES OR TAKING A CASE
 TO ARBITRATION."
 
    SINCE SECTION 7121(B)(3)(C) OF THE STATUTE MAKES IT CLEAR THAT ONLY
 THE EXCLUSIVE REPRESENTATIVE OR THE AGENCY MAY INVOKE ARBITRATION,
 INTERFERENCE WITH "TAKING A CASE TO ARBITRATION" WOULD NOT INVOLVE
 INTERFERENCE WITH THE EXERCISE BY THE EMPLOYEE OF A PROTECTED RIGHT.
 REGARDING THE ALLEGATION THAT RESPONDENT'S CONDUCT DISCOURAGED
 EMPLOYEES
 FROM FILING GRIEVANCES, THE STIPULATION OF FACTS CONTAINS NO EVIDENCE TO
 SUPPORT SUCH A CONCLUSION.  NOR IS THERE ANY EVIDENCE THAT WOULD TEND TO
 ESTABLISH THAT THE ACTIVITY'S CONDUCT OTHERWISE INTERFERED WITH THE
 EXERCISE OF STATUTORY RIGHTS.  THEREFORE, THE ALLEGATION OF AN
 INDEPENDENT SECTION 7116(A)(1) VIOLATION MUST BE REJECTED.
 
                                   ORDER
 
    IT IS ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-211 BE, AND IT
 HEREBY IS, DISMISSED IN ITS ENTIRETY.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7121(A) AND (B) PROVIDES:
 
    (A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION ANY
 COLLECTIVE BARGAINING
 
    AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
 INCLUDING QUESTIONS OF
 
    ARBITRABILITY.  EXCEPT AS PROVIDED IN SUBSECTIONS (D) AND (E) OF THIS
 SECTION, THE PROCEDURES
 
    SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
 WITHIN ITS CO