39:1036(87)AR - - Transportation, FAA, Springfield, IL and National Air Traffic Controllers Association - - 1991 FLRAdec AR - - v39 p1036
[ v39 p1036 ]
The decision of the Authority follows:
39 FLRA No. 87
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
March 5, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Samuel S. Perry filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance disputing the Agency's failure to change the grievant's non-duty Familiarization Flight (FAM) trip to a duty FAM trip.
For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Consequently, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, an air traffic controller, requested 64 hours of annual leave from October 4, 1989, 1:30 p.m. to October 13, 1989, 2:00 p.m. On July 15, 1989, that request was approved. Article 24 of the parties' agreement states, in part, that an employee may cancel annual leave at any time and, unless operational requirements dictate otherwise, shall be assigned to work his or her regularly scheduled shift.
Article 23 of the parties' agreement allows employees to take familiarization flight trips to other Air Traffic Control (ATC) facilities, subject to operational needs and staffing limitations, to familiarize themselves with the equipment and operations of other facilities. Section 5 of Article 23 provides, in part: "Approved familiarization visits to ATC facilities . . . during duty days are not assigned duties but shall entitle the employee to be in a duty status during his/her regularly scheduled shift." Arbitrator's Award at 38. In September 1989, the grievant requested, and was granted, a FAM trip for October 6, 1989 and October 13, 1989. The dates requested by the grievant "coincided with the same dates of the [g]rievant's approved annual leave." Id. at 42. The grievant's FAM request "reflected annual leave, days off and [a] holiday from October 7-13, 1989 and that the [g]rievant was scheduled to work on October 6, 1989 from [2:00 p.m.-10:00 p.m.] and on October 13, 1989 from [6:00 a.m. to 2:00 p.m.]" Id. at 43. For October 6, 1989, the grievant was approved for a flight departing from St. Louis at 7:50 a.m. and arriving in Tampa at 11:08 a.m. For October 13, 1989, the grievant was approved for a flight departing from Tampa at 4:40 p.m. and arriving in St. Louis at 6:04 p.m.
To cancel annual leave once it has been approved, "normally an employee informs his/her supervisor of the cancellation of approved annual leave." Id. In this case, "[a]t no time did the [g]rievant ask that his annual leave be cancelled for October 6 and 13, 1989, nor did his supervisor state he was unilaterally cancelling the [g]rievant's approved annual leave." Id.
The grievant left St. Louis at 9:00 a.m. on October 6, 1989, visited the Tampa Tower from 12:50 p.m.-1:30 p.m. on that date, and left Tampa at 4:40 p.m. on October 13, 1989. The Agency "placed the [g]rievant on approved annual leave October 6-13, 1989 and credited the [g]rievant with a non-duty FAM, rather than a duty FAM for those days." Id.
A grievance was filed requesting that the grievant "be made whole in all ways and that all annual leave be restored" for October 6, 1989 and October 13, 1989. Id. The parties exhausted the grievance procedure without resolving the dispute and the matter was submitted to arbitration.
The Arbitrator stated that the issue "pertains to whether or not the procedure that was followed by the Agency complies with the terms of the Agreement." Id. at 45.
The Union argued before the Arbitrator that the parties' agreement reflects a "liberalized Familiarization Program" in which "the issue of annual leave is clear with respect to duty FAMs." Id. at 44. Specifically, the Union contended that "[i]f the employee requests a duty FAM on a day of approved leave, [m]anagement will approve it." Id.
The Agency contended before the Arbitrator that "no violation of any provision of the Agreement has occurred" and that the grievant "was not entitled to a duty FAM trip, [and,] therefore, he would not be placed in a duty status to vis[i]t Tampa Tower." Id.
The Arbitrator noted that two of the Union's witnesses "participated in the formulation and negotiation of the National Agreement, including Article 23, which is in question on this arbitration proceeding" and "testified that the purpose of the Familiarization trips, although stated in the Agreement as training, was viewed as a benefit by the controllers because it enabled the controllers to technically fly for free to whatever destination they wished for vacation[.]" Id. at 45. However, the Arbitrator noted that "[n]o negotiations notes were introduced to reflect this view." Id. The Arbitrator further noted that "no evidence was presented to document" the witnesses' testimony that "annual leave could be converted to a duty FAM[.]" Id.
The Arbitrator evaluated the Union's argument that "the intent of the drafters of Article 23 was that once a duty FAM was requested, any annual leave automatically cancelled and converted to a duty FAM[,]" but concluded that "Article 23 clearly states that the . . . FAM trips are part of a training program" and that "[n]o documentation has been submitted which might reflect that this program has been used for any purpose other than training." Id. at 47. Contrary to the Union's argument, the Arbitrator found that the parties' agreement is "very clear and precise regarding [the] cancellation of annual leave" and that, under the agreement, "[m]anagement could not have automatically cancelled the [g]rievant's annual leave and converted it to a duty FAM trip" or it "would have been in violation of [another provision of the parties' agreement] and subject to a grievance of another nature." Id.
The Arbitrator noted that the Union "asks this Arbitrator" to: (1) "convert the [g]rievant's annual leave to a duty FAM"; (2) "change the [g]rievant's shifts on October 6, 1989 and October 13, 1989 in order that they match the times of the [g]rievant's flights"; and (3) "change the [g]rievant's regularly assigned shift in order to justify a duty FAM in accordance with Article 23, which states that a duty FAM must be taken within the employee[']s regularly scheduled shift." Id. at 50.
The Arbitrator found that "the [g]rievant did not state he wished to cancel his approved annual leave" and, therefore, the "Agency was complying with the terms of the Agreement by placing the [g]rievant on his approved annual leave and not automatically cancelling it without the [g]rievant's request to do so." Id. Noting the testimony of an Agency witness that the grievant's FAM trip could have been a duty FAM had the grievant requested a shift change for those dates, the Arbitrator concluded that the grievant's FAM trip "could have been approved as an on-duty FAM had the . . . procedures [noted by the Agency's witness] been followed in regard to shift change and conversion of annual leave." Id. at 50. As "[n]o evidence has been presented which would lead this Arbitrator to conclude that [m]anagement was arbitrary, capricious or discriminatory in any manner when it made the determination that the [g]rievant's trip . . . did not qualify as a duty FAM[,]" the Arbitrator concluded that "the Union has failed to prove [that] any violation of the Agreement has occurred." Id. at 50, 51.
III. Positions of the Parties
A. The Union
The Union argues that the Arbitrator's award is deficient because it "is contrary to law, rule, or regulation, and is otherwise deficient based upon grounds similar to those applied to Federal Courts and in private sector labor-management relations." Union's Exceptions at 1.
The Union contends that "[s]ignificant and relevant facts appear [to be] missing from consideration by the [A]rbitrator[.]" Union's Memorandum in Support of Exceptions at 2. The Union notes that its two witnesses "were principal parties in the [n]egotiations of the National Agreement, of which Article 23 is a part." Id. The Union notes that while the Arbitrator quotes F. Elkouri & E. Elkouri, How Arbitration Works (4th ed. 1985), "as reason for ignoring" the testimony of the Union's witnesses, that same resource provides that an arbitrator considers past practice as a primary factor and that, in interpreting agreements, an arbitrator is to give effect to the mutual intent of the parties. Id. at 2, 3. According to the Union, its witnesses testified that "this was a past practice" and "adequately and definitively gave the Arbitrator, the 'Intent of the Parties.'" Id. at 3. The Union further asserts that the Agency presented no witnesses who were present at the negotiations of the National Agreement or Article 23.
Moreover, the Union challenges the testimony of the Agency's witness. The Union states that the Agency's witness "had no knowledge of [the parties'] bargaining history" and "was not familiar with the facts as [they] pertained to this grievance." Id. at 4. Further, the Union contends that in discussing the cancellation of annual leave, the Arbitrator "appears to accept [the] testimony [of the Agency's witness] as unchallenged fact" even though the testimony of the Union's witnesses on the conversion of annual leave to a duty FAM was "completely different from the testimony and understanding of [the Agency's witness]." Id. at 6.
The Union asserts that all parties "testified that no procedure exist[s] for cancel[l]ing annual leave in order to convert it to a Duty-FAM" and, yet, the Arbitrator "uses this as a basis of denial." Id. (emphasis in original). Because a "procedure or policy has never existed[,]" the Union disputes the Arbitrator's finding that the Agency could not have automatically cancelled the grievant's annual leave and converted it to a duty FAM. Id. at 7 (emphasis in original). By denying the grievance based on such findings, the Union argues that the Arbitrator's award "is contrary to all labor-management principles[.]" Id.
Pursuant to section 2429.26 of the Authority's Rules and Regulations, the Union was permitted to file a supplement to its exceptions. As its supplemental submission, the Union enclosed an arbitration decision by the same arbitrator on a different grievance. According to the Union, this second arbitration decision supports its exceptions in the instant case because the decision "pertains to the same issue" and "is a valid and correct interpretation of the issues grieved and subsequently arbitrated." Union's Supplement to Exceptions at 1.
B. The Agency
The Agency contends that the Union's exceptions are "unfounded, unsupported and totally without merit[.]" Agency's Opposition at 11.
The Agency notes that the grievant visited the Tampa Tower "during a period which was outside his regularly scheduled shift" and "never requested cancellation of his annual leave." Id. at 4. Because the grievant's FAM trip occurred outside his regularly scheduled shift, the Agency contends that, under Article 23 of the parties' agreement, that trip could not have been considered a duty FAM trip. Id. at 5, 8. Moreover, because the grievant never requested that his annual leave be cancelled, the Agency asserts that "a duty FAM trip could not have been approved." Id. at 9.
As the "[U]nion did not show that management violated any provision of the contract[,]" the Agency argues that the Union's exceptions should be denied. Id. at 10.
The Agency did not file a response to the Union's supplemental submission.
IV. Analysis and Conclusions
We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.
We note the Union's assertion that the award is "contrary to law, rule, or regulation[.]" Union's Exceptions at 1. However, the Union cites no law, rule, or regulation with which the award allegedly conflicts, and none is apparent to us. Accordingly, we reject the Union's assertion. See, for example, Union of Public Works Center, San Francisco Bay Employees and U.S. Department of the Navy, Navy Public Works Center, San Francisco, California, 37 FLRA 494, 497 (1990); and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 700, 703 (1990).
We also reject the Union's argument that the award is "deficient based upon grounds similar to those applied to Federal Courts and in private sector labor-management relations." Union's Exceptions at 1. In support of this argument, the Union contends that, on the issue of the interpretation of the parties' agreement, the Arbitrator did not consider the testimony of the two Union witnesses but accepted the testimony of the Agency witness "as unchallenged fact[.]" Union's Memorandum in Support of Exceptions at 6. To the extent that the Union argues that it was denied a fair hearing, we reject that argument. The Authority will find an arbitration award deficient if it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to hear pertinent and material evidence. See, for example, U.S. Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Allenwood, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148, 35 FLRA 827, 829 (1990). An arbitrator has considerable latitude in the conduct of a hearing, however, and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. See, for example, U.S. Department of the Army, Army Reserve Personnel, St. Louis, Missouri and American Federation of Government Employees, Local 900, 35 FLRA 1200, 1205 (1990).
The Union in this case has not established that the Arbitrator refused to hear pertinent and material evidence or otherwise failed to conduct a fair hearing. Rather, we find that the Union's contentions constitute disagreement with the Arbitrator's evaluation of the evidence and testimony presented at the hearing and provide no basis for finding the award deficient. See, for example, U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2144, 39 FLRA No. 18, slip op. at 5 (1991); and American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 34 FLRA 850 (1990).
We note that the Union: (1) challenges the Arbitrator's conclusion that, under the parties' agreement, the Agency could not have automatically cancelled the grievant's annual leave and converted it to a duty FAM; and (2) contends that because no procedure exists for cancelling annual leave, the Arbitrator should not have used the grievant's failure to cancel his annual leave as a basis for denying the grievance. To the extent that the Union is arguing that the award fails to draw its essence from the parties' agreement, we reject that argument.
For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1270-71 (1990).
The Arbitrator interpreted several provisions of the parties' agreement in concluding that the grievant was not entitled to a duty FAM trip for October 6, 1989 and October 13, 1989. The Union has not demonstrated that the Arbitrator's interpretation of those contract provisions renders the award deficient under any of the tests set forth above. We find that in disputing the Arbitrator's conclusion, the Union is merely disagreeing with the Arbitrator's interpretation of the parties' agreement and attempting to relitigate the issue presented before the Arbitrator and does not state a ground on which the Authority will find an award deficient under section 7122(a) of the Statute. See, for example, U.S. Department of Health and Human Services, Social