51:0204(22)AR - - National Air Traffic Controllers Association and FAA - - 1995 FLRAdec AR - - v51 p204



[ v51 p204 ]
51:0204(22)AR
The decision of the Authority follows:


51 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

MEBA, AFL-CIO

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

0-AR-2601

_____

DECISION

September 26, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Ira F. Jaffe 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator dismissed as not arbitrable a grievance seeking credit toward eligibility for early retirement for two employees.

For the reasons set forth below, we conclude that the Union's exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute and we deny the exceptions.

II. Background and Arbitrator's Award

As relevant here, the Union filed a grievance seeking as creditable service for early retirement the time spent by two unit employees on leave without pay (LWOP) while they were serving as Union officials. The grievance was based on Article 3, Section 5 of the parties' collective bargaining agreement.(1) The Agency questioned the arbitrability of the early retirement issue and the parties agreed that the arbitrability question would be resolved first.

The Arbitrator found that this issue was not arbitrable because matters pertaining to retirement, including determinations of what constitutes creditable service, are excluded from the negotiated grievance procedure under section 7121(c)(2) of the Statute and Article 9, Section 3.b of the parties' agreement.(2) Consequently, the Arbitrator dismissed the grievance in that regard. Subsequently, pursuant to a motion from the Union requesting to withdraw a second issue involved in the grievance, the Arbitrator dismissed the grievance as to that matter also.

III. Exceptions

A. Union's Contentions

The Union contends that the award is contrary to law because the grievance concerns contractual service retirement credits that are not excluded from arbitration by section 7121(c)(2) of the Statute, but rather are arbitrable pursuant to the parties' agreement. The Union bases this contention on the affidavit of a Union official which states that a representative of the Office of Personnel Management (OPM) orally informed him that it would decline to rule on the early retirement credit issue because, in a 1972 policy memorandum,(3) OPM delegated to the Agency the exclusive authority to determine eligibility for early out credits under Pub. L. No. 92-297.(4)

B. Agency's Opposition

The Agency claims that the exceptions are untimely filed, based either on the date on which the Arbitrator issued his award on the early retirement issue or on the date on which the Union informed the Arbitrator that it sought to withdraw the grievance on the second issue involved in the case. The Agency contends that the Arbitrator correctly found that the grievance was not arbitrable under section 7121(c)(2) of the Statute.

The Agency asserts that information submitted by the Union concerning an OPM policy was not a part of the stipulated record and, therefore, should not be considered by the Authority.

IV. Analysis and Conclusions

A. Timeliness

Under section 7122(b) of the Statute and section 2425.1(b) of the Authority's Regulations, the time limit for filing exceptions to an arbitration award is 30 days beginning on the date that a final award is served on the filing party. U.S. Department of the Air Force, Headquarters 92nd Bomb Wing, Fairchild Air Force Base, Washington and National Federation of Federal Employees, Local 11, 48 FLRA 403, 405 n.* (1993), reconsideration denied, 48 FLRA 783 (1993). An arbitration award is final under the Statute when all the issues submitted to arbitration are completely and unambiguously resolved. American Federation of Government Employees, Local 1960 and Naval Education and Training Program Development Center, Pensacola, Florida, 34 FLRA 799, 802 (1990).

The issues presented by the grievance in this case were not completely and unambiguously resolved until the Arbitrator dismissed the grievance as to the second issue involved in the grievance. Consequently, the Arbitrator's order dismissing the second issue constituted the final award for purposes of determining the timeliness of the Union's exceptions. As the exceptions were filed within 30 days from the date of service of the award as to the second issue, the exceptions are properly before us.

B. Arbitrability

Section 7121(c)(2) of the Statute excludes from the scope of negotiated grievance procedures "any grievance concerning . . . retirement." The resolution of the issue presented in this case depends on whether the subject matter of the grievance "concern[s] . . . retirement" under section 7121(c)(2). In 7th Infantry Division (Light), Fort Ord, California, 47 FLRA 864, 868-69 (1993), the Authority stated:

The task of resolving a dispute over the meaning of a statutory provision "begins where all such inquiries must begin: with the language of the statute itself." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (citation omitted). If the statute's language is plain, that is, if Congress' intent is apparent from the language, "it is also where the inquiry should end, for where . . . the statute's language is plain, the 'sole function of the courts is to enforce it according to its terms.'" Id. (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917). See also Overseas Education Association v. FLRA, 876 F.2d 960, 974 (D.C. Cir. 1989) ("[u]nless exceptional circumstances dictate otherwise, '[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete.'" (quoting Burlington Northern R.R. Co. v. Oklahoma Tax Commission, 481 U.S. 454, 461 (1987)).

The Union argues that the matter is not excluded by section 7121(c)(2) because it is a contractual matter that cannot be appealed to OPM. Nothing in the language of section 7121(c)(2) limits the exclusion of grievances concerning retirement to those matters concerning retirement that could be appealed under another procedure. Rather, section 7121(c)(2) excludes "any" grievance concerning retirement. Moreover, it does not appear that this is one of the "'rare and exceptional circumstances[]'" when "[t]he 'strong presumption' that the plain language of the statute expresses Congressional intent is rebutted" by a clearly expressed contrary legislative intent. Ardestani v. Immigration and Naturalization Service, 502 U.S. 129, 135-36 (1991) (citations omitted). The Union has not pointed to, and our research has not disclosed, any clear expression in the legislative history of section 7121(c)(2) that Congress intended to limit the phrase "any grievance concerning . . . retirement" to matters that are appealable under another appeals procedure.(5) Accordingly, we find, based on the wording of section 7121(c)(2), that it excludes any grievance concerning retirement.(6)

In this case, the grievance concerns whether time spent by two unit employees on LWOP while they were serving as Union officers constitutes creditable service for determining when an employee will be eligible for retirement. Because it concerns retirement, it is clearly excluded by section 7121(c)(2) from the parties' negotiated grievance procedure. Consequently, the Arbitrator's award finding that the matter was not arbitrable under section 7121(c)(2) is consistent with law. In light of this determination, we find it unnecessary to address any other contentions.

V. Decision

The Union's exceptions are denied.

APPENDIX

Article 3, section 5 of the parties' agreement provides as follows:

An employee who is placed on LWOP while acting in an official capacity on behalf of the Union shall be entitled to all such continued benefits, including participation in the Federal retirement program, as provided in applicable laws and regulations.

Article 9, section 3 of the agreement provides, in pertinent part, as follows:

This procedure shall not apply to any grievance concerning:

. . . .

b. retirement, life insurance, or health insurance[.]




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Relevant provisions of the parties' collective bargaining agreement are set forth in the Appendix to this decision.

2. Section 7121(c)(2) provides as follows:

§ 7121. Grievance procedures

. . . .

(c) The preceding subsections of this section shall not apply with respect to any grievance concerning--

. . . .

(2) retirement, life insurance, or health insurance[.]

3. The Union did not provide a copy of the policy memorandum.

4. Pub. L. No. 92-297, 86 Stat. 141 (1972) amended various provisions of title 5 of the United States Code relating to air traffic controllers, including retirement provisions found under Subchapter III of chapter 83 of title 5 of the United States Code.

5. See H.R. Rep. No. 1403, 95th Cong. 2d Sess. 56 (1978), reprinted in Legislative History of the Federal Service Labor-Management Statute, Title VII of the Civil Service Reform Act of 1978, 96 Cong., 1st Sess. (Comm. Print 1979) (Legislative Histo