54:1354(115)AR - - National Air Traffic Assc. And DOT, FAA [ Transportation, Federal Aviation Administration ] - - 1998 FLRAdec AR - - v54 p1354



[ v54 p1354 ]
54:1354(115)AR
The decision of the Authority follows:


54 FLRA No. 115

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

0-AR-2996

_____

DECISION

October 26, 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 exceptions to an award of Arbitrator Earle W. Hockenberry 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 denied in part and sustained in part a grievance alleging that the Agency violated the parties' collective bargaining agreement, applicable laws, and regulations when it decided not to pay premium pay to unit employees who were not physically located at an operational air traffic facility.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

Air Traffic Control Specialists (ATCSs) occupying positions classified as ATCS at or above GS-10 who are "'assigned to an operational air traffic facility'" are eligible to receive a 5 percent operational differential premium pay (differential) pursuant to FAA Order 3550.13 (Order), which was issued in 1983 and is still in effect.(1) Award at 1 (quoting Order at 1). Section 4.e.(3)(a) of the Order provides that "[e]mployees detailed or temporarily assigned from a covered to a noncovered position will continue to receive the provisions of the law for which eligible [that is, the differential] for a period not to exceed 90 calendar days." Exceptions, Attachment B at 10. Appendix 1 of the Order also states that an employee, when "detailed or temporarily assigned from a covered position to one which is not covered . . . continues to receive the applicable premiums associated with the covered position for a period of up to 90 calendar days." Award at 5. The term "covered" refers to positions or duties referred to in the Order that entitle an employee to the differential. "Noncovered" refers to positions or duties that are not covered by the Order and, therefore, do not entitle an employee to the differential. See Exceptions, Attachment B at 9.

On August 4, 1995, the Agency issued guidance restating the eligibility requirements for ATCSs to receive the differential. The Agency guidance stated:

Employees must be physically located at an operational facility (e.g., center, terminal, or flight service station) to be eligible for the 5 percent operational differential. Employees detailed or temporarily assigned from a covered position to a noncovered position will continue to receive a 5 percent operational differential for a period not to exceed 90 calendar days.

Exceptions, Attachment C.

The Union advised the Agency of its concerns regarding the change in payment of the differential to employees who were detailed or temporarily assigned away from their facility to participate in a work group, project, or other assignment while their positions of record remained at the facility. The Union then filed a grievance alleging that the Agency's decision to cease payment of the differential violated Articles 37 and 84 of the parties' Agreement,(2) applicable laws, and regulations. The Agency denied the grievance, stating, in part, that an ATCS "'on a detail or temporarily assigned to a position outside a terminal or enroute center has no legal entitlement under [5 U.S.C. § 5546a] to the operational differential.'"(3) Award at 2 (quoting Agency's denial of the grievance).

Thereafter, the matter was submitted to arbitration. The Arbitrator framed the issue as follows:

Did the Agency violate the Agreement, FAA Order 3550.13 and/or applicable law, by its decision not to pay the five percent operational differential to bargaining unit employees identified in the written guidance dated August 4, 1995, and effective on September 3, 1995?

If so, what shall be the remedy?

Id. at 3.

Before the Arbitrator, the Union argued that coverage and eligibility for the differential did not cease to exist for employees who were temporarily detailed away from their facility for more than 90 days and were participating in a work group, project or other assignment while their positions of record remained at the facility. The Agency asserted that employees who were located outside of a terminal or center, and who were not actively engaged in the separation and control of air traffic or other covered duties, did not meet the eligibility requirements of 5 U.S.C. § 5546a to retain the differential.

The Arbitrator determined that the dispute "centers on" the Order, Article 37 of the Agreement, and an interpretation of the pay status of an ATCS who was performing duties on a detail or temporary assignment away from an air traffic center or terminal and was not engaged in the active control of aircraft. Id. at 7. With respect to whether such an ATCS was covered by the Order, the Arbitrator noted that 5 U.S.C. § 5546a uses the word "located," 5 U.S.C. § 2109 uses "in," and the Order says "assigned to an operational air traffic facility." Id. at 9.

The Arbitrator found that although the parties differed about these "key words," the "consistent practice" of the Agency since 1983 has been to pay the differential for a period of up to 90 days for ATCSs who were detailed or on a temporary assignment away from their facility position of record, and to recoup any overpayment from them beyond that time period. Id. The Arbitrator found that, pursuant to 5 U.S.C. § 5546a, the "Agency is paying the 5% differential, the maximum permitted, so there is no violation of Article 37, or by extension Article 84." Id.

The Arbitrator determined that the Agency guidance was a restatement of the Agency's existing policy and practice established by the Order. The Arbitrator found that the language in the restatement that employees must be "physically located at an operational facility, the exact language grieved by the [Union,] had been repudiated by the statements of [Agency witnesses]." Award at 10.(4) He found, therefore, that the "clear language" of the Agency guidance and the established practice of the parties under the Order establish that ATCSs who are detailed or temporarily assigned away from a covered position "will continue to receive the 5% operational differential 'for a period not to exceed 90 days' without an effort by the Agency to recoup overpayment." Id. at 11. The Arbitrator also found that there was "no persuasive evidence in the record that such a practice has continued beyond 90 calendar days without an effort by the Agency to recoup any overpayment." Id.

As his award, the Arbitrator granted the grievance to the extent that it challenged the Agency's decision to withdraw the differential before the expiration of the 90th calendar day of a detail or temporary assignment. No exception is taken to this part of the award. The Arbitrator denied the grievance to the extent that it alleged that the Agency had an obligation to pay the differential beyond the 91st day of a detail or temporary assignment. It is this part of the award to which the Union excepts.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the award is inconsistent with governing law, rule, and regulation. The Union states that the parties agree that the governing regulation is the Order, and it argues that the Agency guidance is inconsistent with the Order. According to the Union, if the statement in the Agency guidance that employees must be physically located at an operational facility (e.g., center or terminal) were true, then employees who were temporarily participating on an Agency work group or project at FAA headquarters would not be eligible for a "differential at all, much less for 90 days." Exceptions at 4.

The Union contends that "[t]here is no legal or regulatory provision which triggers termination of the 5% differential after 90 days for any [ATCS] who retains the necessary coverage" pursuant to the Order. Id. at 7. According to the Union, "[a]bsent a provision in the law terminating the . . . differential after a specified period, the Agency is compelled to continue payment of the [differential] so long as individuals have met the eligibility requirements pursuant to" the Order. Id. The Union asserts that an ATCS is covered for purposes of entitlement to the differential as long as he or she occupies an ATCS position at GS-10 or above and is assigned to a center or terminal. Additionally, the Union asserts that past practice was not a point of contention at the hearing and that the Union "never tolerated" a practice of recoupment of overpayments. Id.

The Union also contends that the Arbitrator's decision is deficient because it is based on a "nonfact." Id. at 3. The Union asserts that in finding that the differential is not applicable beyond 90 days, the Arbitrator erred in his application of covered/non-covered definitions to unit employees on temporary detail. According to the Union, the wording of section 4.a.(1) of the Order and record testimony establish that any ATCS assigned to a center or terminal is in a covered position. The Union maintains that such an employee would become ineligible to receive the differential only if the employee is assigned to a position outside the bargaining unit--a non-covered position. The Union asserts that the Arbitrator "implicit[ly]" determined that affected ATCSs were detailed to non-covered positions. Id. at 9. The Union also asserts that this finding is erroneous because the ATCSs involved here are in covered positions within the meaning of the Order and, thus, are entitled to the differential as long as they are assigned to a center or terminal even though they may be detailed or temporarily assigned elsewhere. The Union further contends that the past practice referenced by the Arbitrator does not support the award because it relates to "non-covered" positions. Id.

B. Opposition

The Agency asserts that the essence of the Union's argument is that the Arbitrator reached the wrong factual conclusion, based on evidence presented at the hearing, on the interpretation and application of the Order. The Agency contends that the Union cites no legal authority to establish that the award is contrary to law or Government-wide regulation. Lastly, the Agency asserts that the award is not based on a nonfact.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to FAA Order 3550.13, an Agency Regulation

The Union contends that the award is inconsistent with governing law, rule and regulation. The Union does not rely on a statute or Government-wide regulation, and acknowledges that the "governing regulation" is the Order. Exceptions at 3. We construe the Union's contention as a claim that the award is inconsistent with the Order, an Agency regulation.

Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule or regulation. For purposes of section 7122(a)(1), the Authority has defined "rule or regulation" to include both Government-wide and governing agency rules and regulations. See U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 192 (1990). Where an agency's exceptions involve the award's consistency with law, we review the questions of law raised by the agency's exceptions and the arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (U.S. Department of the Army). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. (5)

The Arbitrator denied the grievance to the extent that it alleged that the Agency had an obligation to pay the differential beyond the 91st day for ATCSs detailed or temporarily assigned away from their facility position of record. In so doing, the Arbitrator effectively determined that such employees are not "covered" employees for purposes of receiving the differential under the Order. In order to demonstrate that the Arbitrator's determination conflicts with the Order, it must be shown that the Order precludes the Arbitrator from having made this determination. See American Federation of Government Employees, Council 220 and Social Security Administration, 54 FLRA 163, 168 (1998).

Nothing in the Order demonstrates that ATCSs who are "detailed or temporarily assigned" away from their facility position must be considered covered employees under the Order. Section 4.a.(1) of the Order concerns "[a]ir [t]raffic [c]overage" and describes employees entitled to receive the differential as all supervisory and nonsupervisory employees "occupying positions classified as GS-10 or above assigned to an operational air traffic facility . . . ." Exceptions, Attachment B. This section is silent with respect to the payment of the differential when an employee is detailed or temporarily assigned away from an operational air traffic facility. However, section 4.e and Appendix 1 to the Order state that an employee who is detailed or temporarily assigned from a covered position to one which is not covered will continue to receive the differential associated with the covered position for a period of up to 90 calendar days.

The Arbitrator found that the past practice of the parties under the Order and Appendix 1 established that ATCSs "detailed or temporarily assigned" away from their facility position of record--covered position--as here were not entitled to receive the differential beyond the 91st day of such an assignment. Award at 9. The Arbitrator's finding that such employees were not entitled to receive the differential because they were not temporarily "assigned" or detailed to a covered position is not inconsistent with the Order's requirement limiting payment of the differential to employees "assigned" to a covered position. To the extent that the Union disputes the Arbitrator's factual finding that a past practice existed with respect to the recoupment of overpayments of the differential, such contention provides no basis for finding the award deficient because the Authority defers to an arbitrator's factual findings. See, e.g., Federal Aviation Administration, SEATAC Airport, Seattle, Washington and National Air Traffic Controllers Association, 52 FLRA 701, 709 (1996).

Based on the above, there is no basis on which to conclude that the Arbitrator's award is contrary to the Order. Accordingly, we deny the exception.

B. The Award Is Not Based on A Nonfact

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995). See also Social Security Administration, Mid-Atlantic Program Service Center and American Federation of Government Employees, Local 1923, 53 FLRA 956, 959 (1997).

The Union has not established that the Arbitrator's determination that "covered position" under the Order did not include ATCSs detailed or temporarily assigned away from their facility positions of record constitutes a "fact" underlying the award. The Arbitrator determined that ATCSs detailed or temporarily assigned away from the facility position of record were covered for purposes of payment of the differential for a period of up to 90 days. The Arbitrator's conclusion resulted from his application of his interpretation of the parties' agreement and applicable law and regulation to the evidence presented and, as such, cannot be challenged as a nonfact. See U.S. Department of Defense Dependents Schools, Arlington, Virginia and Overseas Education Association, 52 FLRA 3, 10-11 (1996); American Federation of Government Employees, Local 1941 and U.S. Department of the Army, U.S. Army Chemical and Military Police Centers and Fort McClellan, Fort McClellan, Alabama, 51 FLRA 998, 1000 (1996); American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 398 (1995).

The Union also has not demonstrated that the Arbitrator's past practice finding--that ATCSs detailed or temporarily assigned away from their facility position of record--covered position--did not receive the differential beyond the 91st day of such an assignment--provides a basis for finding the award deficient based on a nonfact. The record demonstrates that the time for which the differential was paid while ATCSs were on detail away from their facility position of record was a matter disputed by the parties at arbitration. See, e.g., American Federation of Government Employees, Local 2006 and Social Security Administration, Philadelphia, Pennsylvania, 54 FLRA 110, 118 (1998). Because this matter was disputed at the arbitration, the Union may not now raise a nonfact allegation on this basis. See id. at 118.

Accordingly, the Union has failed to establish that the award is deficient because it is based on a nonfact, and we deny this exception.

V. Decision

The Union's exceptions are denied.

APPENDIX

5 U.S.C. § 5546a provides, in relevant part, as follows:

§ 5546a. Differential pay for certain employees of the Federal Aviation Administration . . .

(a) The Administrator of the Federal Aviation Administration . . . may pay premium pay at the rate of 5 per centum of the applicable rate of basic pay to--

(1) any employee of the Federal Aviation Administration . . . who is--

(A) occupying a position in the air traffic control series classified not lower than GS-9 and located in an air traffic control center or terminal or in a flight service station;

(B) assigned to a position classified not lower than GS-09 or WG-10 located in an airway facilities sector; or

(C) assigned to a flight inspection crew-member position classified not lower than GS-11 located in a flight inspection field office,

the duties of whose position are determined by the Administrator . . . to be directly involved in or responsible for the operation and maintenance of the air traffic control system[.]

FAA Order 3550.13 provides, in relevant part, as follows:

FAA ORDER 3550.13 (10/25/83)

. . . .

3. Background. Public Law 97-276 gave the Federal Aviation Administrator the authority to prescribe standards for determining which air traffic controllers and other employees of the FAA are to be paid premium pay under this law, and to prescribe such rules as he determines are necessary to carry out the provisions of this law . . . .

4. Coverage

a. Air Traffic Coverage

(1) 5 percent Operational Responsibility Differential.
(a) ALL supervisory and nonsupervisory employees occupying positions classified as GS-2152 Air Traffic Control Specialists at grades GS-10 or above assigned to an operational air traffic facility (e.g., center, terminal, or flight service station).

. . . .

e. Other Coverage Conditions.

. . . .

(3) Details and Temporary Assignments.

(a) Employees detailed or temporarily assigned from a covered to a noncovered position will continue to receive the provisions of the law for which eligible for a period not to exceed 90 calendar days.

APPENDIX 1

2.c. Question. When does an employee, detailed or temporarily assigned from a covered position to one which is not covered, stop receiving the benefits of the covered position?

Answer. The employee continues to receive the applicable premiums associated with the covered position for a period of up to 90 calendar days. However, if the employee is still in the noncovered position beyond the 90th calendar day, the employee will remain covered by the applicable premium through the end of the administrative work week within which the 90th day falls.

Award at 4-5, Exceptions, Attachment B.




FOOTNOTES:
 

1. The pertinent text of the Order and the Appendix to it, referred to below, is set forth in the Appendix to this decision.

2. The pertinent provisions of the agreement provide as follows:

ARTICLE 37 WAGES

Section 1. Employees shall be paid in accordance with applicable laws, so as to receive the maximum compensation allowable by law except as otherwise provided for in this Agreement.

Section 2. The provisions of Section 1 apply to, but are not limited to, the following: . . . operational differential pay . . . .

ARTICLE 84 EFFECT OF AGREEMENT

Section 1. Any provision of this agreement shall be determined a valid exception to, and shall supersede any existing or future employer rules, regulations, orders and practices which conflict with the Agreement.

3. The text