51:0993(82)AR - - National Air Traffic Controllers Assc. & FAA, Southern CA Tracon, ( Dept. of Transportation ) - - 1996 FLRAdec AR - - v51 p993

[ v51 p993 ]
The decision of the Authority follows:

51 FLRA No. 82















March 27, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Thomas H. Vitaich 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 determined that the Agency had properly terminated retention allowances of the grievants when they transferred to a new facility.

We conclude that the Union fails to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Arbitrator's Award

The Office of Personnel Management (OPM) approved a demonstration project by the Agency "to recruit and retain experienced, qualified employees in designated occupations in certain hard-to-staff facilities." 54 Fed. Reg. 10200 (1989). Based on factors specified in the project plan, 22 facilities were included in the project. Employees in the designated occupations assigned to the facilities covered by the project received a quarterly retention allowance (demonstration project pay). Among the facilities included in the project were Los Angeles Terminal Radar Approach Control (LA TRACON) and Coast TRACON.

In 1993 and 1994, the Agency consolidated five TRACON facilities into one newly created facility known as Southern California TRACON (SCT). Among the five TRACONs consolidated into SCT were LA TRACON and Coast TRACON. As a new facility, SCT was not a facility covered by the pay demonstration project. When the employees in positions covered by the project transferred from LA TRACON and Coast TRACON to SCT, the Agency terminated their demonstration project pay. The Union filed a grievance that was submitted to arbitration on the following merits issue:

Did the FAA comply with Federal law, Rules, Regulations, and Congressional intent in discontinuing Pay Demonstration payments for bargaining unit members occupying covered positions at Los Angeles and Coast approaches whose positions have now been transferred to Southern California TRACON (SCT)?

Award at 2.

The Arbitrator denied the grievance. He determined that, under the pay demonstration project plan, an employee must be both in a covered position and assigned to a covered facility. He found that OPM was authorized to extend the project to other facilities, but that OPM had not extended the project to cover SCT. Accordingly, he ruled that it would have been inconsistent with OPM's final project plan for the Agency to have continued the demonstration project pay for employees at a facility that had never been covered by the project. Therefore, the Arbitrator concluded that the Agency had not violated any rule or regulation concerning the pay demonstration project, and he denied the grievance.

III. Exceptions

A. Union's Contentions

The Union contends that the Arbitrator exceeded his authority and that the award is contrary to law. The Union argues that the issue submitted to the Arbitrator involved whether the Agency properly discontinued demonstration project pay for unit employees in covered positions and that the Arbitrator exceeded his authority by redefining the issue to add the issue of whether the positions were transferred to a facility covered by the project plan. The Union argues that the award is contrary to law because, as found by the Arbitrator, the Agency's termination of demonstration project pay to employees transferring to SCT modified the project. The Union maintains that the Agency's unilateral action was not in accordance with 5 C.F.R. § 470.317(*) and that, consequently, the Arbitrator's finding that the Agency had acted properly in unilaterally altering and modifying the project is contrary to law and OPM regulations pertaining to demonstration projects.

B. Agency's Opposition

The Agency contends that the Arbitrator did not exceed his authority because he merely interpreted the issue stipulated by the parties and correctly found that, in determining entitlement to demonstration project pay, the terms "facility" and "positions" were inseparable. The Agency also contends that the award is not contrary to law. The Agency maintains that the Union misinterpreted the award in asserting that the Arbitrator found that the Agency altered the project. The Agency argues that, instead, the Arbitrator correctly determined that it had complied with applicable law and regulation in terminating the disputed demonstration project pay.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority

Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995). We conclude that the Union fails to establish that the Arbitrator exceeded his authority.

We find that the Arbitrator's inquiry into whether the grievants were assigned to a covered facility did not redefine the issue, but, rather, was necessary to decide the stipulated issue of the propriety of the Agency's termination of demonstration project pay. The stipulated issue expressly involves the legality of discontinuing demonstration project pay for employees transferred to SCT. Determining the legality of this action requires resolving whether SCT is a covered facility. Therefore, the Arbitrator did not exceed his authority in considering that issue. See U.S. Department of Defense Dependents Schools and Overseas Education Association, 49 FLRA 658, 663-64 (1994) (arbitrator did not exceed his authority by addressing issue of basic compensation after framing the issue in terms of premium pay because premium pay is always in addition to basic compensation). Accordingly, we deny this exception.

B. The Award is Not Contrary to Law

As the exception involves the award's consistency with law, we must review the questions of law raised by the Arbitrator's award and the Union's exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). The Union's exception that the award is contrary to 5 C.F.R. § 470.317 fails in two respects.

First, the Union misconstrues the award. The sentence in the award on which the Union relies in asserting that the Arbitrator found a project modification is a portion of a quote by the Arbitrator from the Union's post-hearing brief. There is no independent finding by the Arbitrator that the Agency altered and modified the project. Instead, we construe the award as finding that the Agency merely observed the terms and conditions of the final project plan in discontinuing the grievants' demonstration project pay.

Second, the Arbitrator correctly determined that the Agency merely observed the terms of the final project plan and that its actions did not, thereby, terminate the project within the meaning of 5 C.F.R. § 470.317. By authority of 5 U.S.C. § 4703 and in accordance with 5 C.F.R. part 470, subpart C (Regulatory Requirements Pertaining to Demonstration Projects), OPM published the final project plan for the demonstration project in 54 Fed. Reg. 10200-07. OPM described the project as follows: "[T]his demonstration project provides for payment of a retention allowance to employees occupying safety-related positions at selected hard-to-staff facilities in the Chicago, New York, Los Angeles and Oa