48:1112(121)AR - - Transportation, FAA, Burlington, MA and National Air Traffic Controllers Association - - 1993 FLRAdec AR - - v48 p1112
[ v48 p1112 ]
The decision of the Authority follows:
48 FLRA No. 121
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
December 13, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Mark M. Grossman filed by the Agency 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 Union filed an opposition to the Agency's exceptions.(1)
The Arbitrator sustained a grievance alleging that the Agency's decision to terminate the grievant's training violated Agency orders and the parties' collective bargaining agreement. For the following reasons, we conclude that this case must be remanded to the parties to have them obtain a clarification of the award from the Arbitrator.
II. Background and Arbitrator's Award
The grievant, an air traffic controller, was promoted to a GS-12 position. To qualify for the GS-12 position, the grievant was required to complete and pass a 110-hour on-the-job training (OJT) course which included two preliminary evaluations conducted during the OJT and a final certification evaluation conducted at the end of the OJT. The grievant passed both preliminary evaluations, but was given a notice of unsatisfactory performance prior to the final certification evaluation. However, because the notice was given at the end of the OJT period, the grievant was allowed to undergo the final certification evaluation. The grievant was required to take the certification evaluation on 4 consecutive days. Although the grievant performed successfully on the first and third days, he performed unsuccessfully on the second and fourth days. Consequently, the grievant's training was terminated and he was returned to his previous GS-11 position.
The grievant grieved the termination of his training. When the grievance was not resolved, it was submitted to arbitration on the following issue, as stipulated by the parties:
Was the decision to terminate the grievant's training . . . in accordance with [A]gency orders and the parties' collective bargaining agreement? If not, what shall be the remedy?
Award at 1.
Relying on Article 67, Section 1, of the parties' agreement,(2) the Arbitrator found that the Agency had violated the grievant's right to receive training in a fair and equitable manner. Specifically, the Arbitrator found that certain of the grievant's instructors admitted that their evaluation reports were not accurate. In addition, the Arbitrator determined that, as most of the grievant's training was conducted in "light traffic" and the certification evaluation was performed in "moderate to heavy traffic[,]" the grievant had been trained under different conditions than those in effect when the certification evaluation was conducted. Award at 22. Further, the Arbitrator found that a typical certification evaluation took about 2 hours and was conducted in 1 day. The Arbitrator determined that, to conduct evaluations in a fair and equitable manner, the Agency may not provide different tests to different trainees.
Based on the foregoing, the Arbitrator concluded that the Agency's decision to terminate the grievant's training was not in accordance with the parties' agreement. The Arbitrator ordered the grievant "reinstated into the training . . . retroactive to the day [the grievant] was demoted to [his previous position]." Id. at 23.
III. Positions of the Parties
The Agency contends that the award interferes with its right to "evaluate performance, and determine training methods and needs[,]" and, thus, violates the Agency's right to assign work under section 7106 of the Statute. Exceptions at 6. The Agency also contends that the Arbitrator "exceeded his authority when he opined that the grievant's overall training was not fair and equitable." Id. (emphasis omitted). In this connection, the Agency argues that the "decision to terminate training was based solely on the grievant's inability to pass the certifier's evaluation[.]" Id. at 7.
Further, the Agency contends that the award is based on nonfacts. Specifically, the Agency claims that the Arbitrator erred in finding that the Agency training reports "did not accurately reflect problems the grievant had in training." Id. at 8. The Agency also claims that the Arbitrator erred in finding that the grievant was trained under different conditions than those in effect at the time of the certification evaluation.
The Union contends that the Agency's exceptions provide no basis for finding the award deficient.
IV. Analysis and Conclusions
At the outset, we reject the Agency's claim that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when, for example, an arbitrator resolves an issue not submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. See U.S. Department of the Air Force, Air Force Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 667, 671-72 (1993). The Agency has not established that the Arbitrator's award relates to matters which were not submitted to arbitration, that the Arbitrator awarded relief to persons who did not file a grievance or that, in any other manner, the Arbitrator exceeded his authority. Indeed, the Arbitrator directly responded to the issue before him by concluding that "[t]he decision to terminate the grievant's training . . . was not in accordance with . . . the parties' collective bargaining agreement." Award at 23. Accordingly, the Agency's claim that the Arbitrator exceeded his authority provides no basis for finding the award deficient.
We also reject the Agency's claim that the award is based on nonfacts. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1372 (1993). Although the Agency disputes certain arbitral findings, it has not established that the findings were central to the award, or that they were clearly erroneous. In our view, the Agency's exception constitutes nothing more than disagreement with these specific findings of fact. The Authority has consistently held that mere disagreement with an arbitrator's findings of fact does not establish that the award is based on a nonfact and does not otherwise provide a basis for finding an award deficient under the Statute. See Overseas Education Association, West Point Elementary School Teachers and U.S. Department of Defense, United States Military Academy, West Point, New York, 48 FLRA 213, 218 (1993).
Nevertheless, we find that we are unable to determine whether, as the Agency argues, the award is deficient because it interferes with the Agency's right to assign work. We note, in this connection, that the right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to train, or not train, employees.(3) See, for example, American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 560 (1991).
The Arbitrator ordered the grievant "reinstated into the training . . . retroactive to the day [the grievant] was demoted to [his previous position]." Award at 23. However, the record establishes that the grievant was demoted to his previous position at the completion of the prescribed 110-hour training. As the grievant's training was completed on the date which the award requires reinstatement to training, it is unclear whether the award requires the Agency to prov