54:0853(84)AR - - DOT, FAA and National Air Traffic Controllers Association - - 1998 FLRAdec AR - - v54 p853
[ v54 p853 ]
The decision of the Authority follows:
54 FLRA No. 84
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
August 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Cabaniss for the Authority
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Edward P. Archer filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exception.
The Arbitrator sustained the Union's grievance, finding that the Agency violated the parties' collective bargaining agreement (the agreement) when it failed to use a Union-promulgated seniority policy for the selection of employees to work at an air show. The Agency contends that the Arbitrator exceeded his authority by failing to limit the scope of his award to bargaining unit employees.
For the reasons set forth below, we find that the Arbitrator did not exceed his authority, and deny the exception.
II. Background and Arbitrator's Award
The Union filed a grievance on December 30, 1997, challenging the Agency's decision to measure seniority from an employee's date of hire by the Agency to select employees for temporary assignments at the 1998 Oshkosh air show. In previous years, the Agency had used this method to determine seniority for assignments to the air show, which is held annually. However, at its 1996 national convention, the Union exercised its right under the agreement to determine seniority policy and established a "national seniority policy" for the bargaining unit. This policy calculates seniority based upon length of time in the bargaining unit, rather than length of time with the Agency.
At the hearing, the Agency contended that its previous method of determining seniority, and not the Union's new policy, should apply to the 1998 air show. The Arbitrator rejected this argument. He found that the Union's enactment of the new policy had altered the previous method, and that the new policy applied to the air show. Accordingly, he sustained the grievance, and ordered the Agency "to revoke its employee assignment list for the 1998 Oshkosh air show and to establish a new list utilizing the Union['s] 1996 seniority policy." Award at 7-8.
III. Positions of the Parties
A. Agency's Exception
The Agency argues that the Arbitrator exceeded his authority by awarding a remedy that affects nonunit employees. The Agency contends that both unit and nonunit employees apply for temporary assignments at the air show. Because the Union's seniority policy assesses only length of time in the bargaining unit, the Agency asserts that, over time, the arbitrator's award will preclude the Agency from assigning nonunit employees to work at the air show.
B. Union's Opposition
The Union maintains that the Arbitrator never indicated that the award covered nonunit employees. The Union claims that the Agency's argument that the award will, over time, preclude the Agency from assigning nonunit employees to the air show "assumes facts not in evidence." Opposition at 2.
IV. Analysis and Conclusions
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards 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).
The Agency's argument that the arbitrator exceeded his authority by awarding a remedy that affects nonunit employees is without merit. In asserting that the award encompasses nonunit employees, the Agency has misconstrued the award. The award orders the Agency to "revoke its employee assignment list for the 1998 Oshkosh air show and to establish a new list utilizing the Union['s] 1996 seniority policy." Award at 8. As there is no mention or discussion of nonunit employees in the award, the award applies only to bargaining unit employees.
The Agency's assertion that it will be precluded from assigning nonunit employees to work at the air show is unfounded. Since the assignment list is set forth in two parts, i.e., non-unit and bargaining unit, the revocation of the bargaining unit list directed by the award is straight- forward. See Exceptions, Attachment B. The Union's seniority policy applies only to those positions that the Agency chooses to fill with bargaining unit employees. Nonunit employees seeking work at the air show are unaffected by the award.