Sport Air Traffic Controllers Organization and U.S. Department of Air Force, Air Force Flight Test Center, Edwards Air Force Base, California

[ v55 p771 ]

55 FLRA No. 129

SPORT AIR TRAFFIC CONTROLLERS
ORGANIZATION
(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE FLIGHT TEST CENTER
EDWARDS AIR FORCE BASE, CALIFORNIA
(Agency)

0-AR-3119

_____

DECISION

August 31, 1999

_____

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

Decision by Member Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Sara Adler 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 sustained in part and denied in part a grievance alleging that the Agency violated the parties' collective bargaining agreement by rescinding a memorandum of understanding setting forth the settlement of a grievance. To remedy the violation, the Arbitrator directed the Agency to reinstate the memorandum of understanding, but with revisions to its original terms.

      For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II.     Background and Arbitrator's Award

      This case concerns a dispute between Sport Air Traffic Controllers Organization (hereinafter referred to as the Union) and the U.S. Department of the Air Force (hereinafter referred to as the Agency) over the Agency's implementation of training in "non-radar" problems for air traffic controllers at Edwards Air Force Base, California. Non-radar problems are those associated with the radar becoming inoperative. See Award at 7.

      The SPORT Radar Control Facility (RCF) provides air traffic control services at Edwards Air Force Base. In a report on SPORT RCF dated June 1997, the Agency stated that "Many facets of the SPORT, RCF controller development program are deficient or do not exist and may jeopardize the Edwards flying mission and flight safety." Id. at 4-5. The report stated specifically that non-radar training was "not being conducted." Id. at 5.

      By letter dated September 26, 1997, the SPORT RCF Facility Manager (the Facility Manager) notified the Union of a plan to implement non-radar training on November 1, 1997, subject to negotiations over the implementation of the proposed training. By letter dated October 14, 1997, the Union responded that any negotiations over the training would have to be part of the negotiations for a new collective bargaining agreement and proposed that the status quo be maintained.

      By letter dated October 21, 1997, the Facility Manager stated that he viewed the Union's proposal to maintain the status quo as not responsive to his invitation to negotiate. He further stated that the non-radar training would be implemented on November 1, 1997.

      On November 3, 1997, the Union filed a grievance over the implementation of the non-radar training. The Agency initially denied the grievance. However, by memorandum of understanding dated January 6, 1998 (MOU), the Facility Manager and the Union settled the grievance. In the MOU, the Facility Manager agreed that the Agency would not implement the non-radar training until substantive bargaining on that matter had been completed.

      Subsequently, by letter, a Lieutenant Colonel whom the Arbitrator identified as the Base Commander ordered the MOU rescinded and the reinstatement of the October 21 letter implementing the non-radar training. See id. at 5. In the letter, he stated that the Facility Manager had exceeded his authority in signing the MOU. He further stated that the Agency was unwilling to engage in substantive bargaining over non-radar training.

      Thereafter, the Facility Manager rescinded the MOU and reinstated the October 21 letter implementing the non-radar training. The Union filed the instant grievance over the rescission of the MOU. As a remedy, the Union sought the reinstatement of the MOU in its entirety. The grievance was submitted to arbitration. [ v55 p772 ]

      The parties could not agree on the issue to submit to the Arbitrator. The Arbitrator framed the issues as follows:

1.     Did the Agency violate the Collective Bargaining Agreement when it rescinded the grievance settlement regarding non-radar training dated 1/6/98?
2.     If so, what is the appropriate remedy?

Id. at 2.

      The Arbitrator concluded that the Agency violated the collective bargaining agreement by rescinding the MOU in its entirety. Initially, the Arbitrator set forth several provisions of the collective bargaining agreement that she found relevant to the dispute. See id. at 2-4. The Arbitrator stated that the collective bargaining agreement "recognizes the law by incorporating its limitations and, at least impliedly, recognizes that agreements, such as the January 6th. MOU, are subject to review by the Base Commander." Id. at 6. Thus, the Arbitrator found that the Agency had a right to rescind the MOU.

      The Arbitrator found that non-radar training concerns the mission of the Agency and is not subject to substantive bargaining. See id. at 7. However, the Arbitrator further found that the introduction of formal non-radar training is subject to impact and implementation bargaining. Accordingly, the Arbitrator found that the Agency should not have rescinded the MOU in its entirety, but amended it to require impact and implementation bargaining only. Therefore, the Arbitrator ordered the Agency to reinstate the MOU and revise its original terms to require only impact and implementation bargaining and not substantive bargaining.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the award fails to draw its essence from the collective bargaining agreement on three grounds.

      First, in its essence argument, the Union argues that the award violates Article 30, Section 9 of the collective bargaining agreement because the Arbitrator did not cite any provision of the collective bargaining agreement in reaching her determination that the collective bargaining agreement incorporates law and implicitly recognizes that agreements such as the MOU are subject to review by the Base Commander. The Union notes the wording of Article 30, Section 9 which provides, in pertinent part, as follows: "The Arbitrator may not add to, modify or delete any provision of this agreement. . . ." Exceptions at 4. The Union asserts that the collective bargaining agreement does not explicitly or implicitly provide for the review of settlement agreements negotiated under Article 29, Section 1 by the Base Commander or anyone else. Id. at 3. By way of background, the Union also asserts that the MOU was negotiated in accordance with Executive Order 12,871 and is consistent with section 7106(b)(1) of the Statute. Id. at 4.

      Second, the Union argues that the remedial order directing the Agency to revise the MOU violates Article 29 of the collective bargaining agreement. In support, the Union cites Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service) which applied the Supreme Court's decision in Paperworkers v. Misco, 484 U.S. 29, 38 (1987) (Misco). The Union states that Article 29 provides that the Facility Manager is the Agency's representative for resolving Union grievances and has the "authority" to enter into "binding" settlement agreements. Exceptions at 4.

      Third, the Union argues, without explanation, that the award violates Article 10, Section 1 of the collective bargaining agreement.

      Further, the Union contends that the award violates section 7114(c)(1)-(3) of the Statute. [n1]  The Union argues that review of the MOU was not in accordance with section 7114(c)(1)-(3) because the Lieutenant Colonel was not the head of the Agency. The Union states that neither the Statute, government-wide regulations or the parties' agreement permits review of agreements by anyone "in [the] chain of command between the agency's contractually agreed to representative, and the head of the agency[.]" Exceptions at 3. In support, the Union cites Department of Defense Dependent Schools, 50 FLRA 425 (1995).

      Finally, the Union contends, without explanation, that the award violates 7116(a)(1) and (5) of the Statute. [ v55 p773 ]

      As a remedy, the Union seeks the reinstatement of the MOU with its original terms.

B.     Agency's Opposition               

      The Agency maintains that the Union's exceptions must be denied. The Agency argues that the Arbitrator correctly determined that the MOU could not be enforced because it provided for substantive bargaining over non-radar training, a matter that concerns management rights. The Agency asserts that the non-radar training concerns management's rights to determine its mission under section 7106(a)(1) and to take whatever actions that may be necessary to carry out the agency mission during emergencies. The Agency also asserts that the non-radar training concerns management's right to assign work under section 7106(a)(2)(B) of the Statute.

IV.     Analysis and Conclusions

A.     The Award Draws Its Essence From The Collective Bargaining Agreement

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Union first challenges the Arbitrator's determination that, under the collective bargaining agreement, the Lieutenant Colonel had the authority to review the MOU entered into by the Facility Manager. The Union claims that the award fails to draw its essence from Article 30, Section 9. [n2]  In reaching her decision, the Arbitrator examined various provisions of the agreement that she found were relevant to the dispute. Her findings with respect to review of the MOU have not been shown to be implausible, irrational, or in manifest disregard of the parties' collective bargaining agreement. Consequently, we find that the Union has not demonstrated that the award fails to draw its essence from the parties' collective bargaining agreement on any of the aforementioned grounds. [n3] 

      The Union further argues that the Arbitrator's remedial order directing the Agency to revise the MOU violates Article 29. [n4]  In the Union's view, modification of the MOU conflicts with the identification in Article 29 of the management officials with the responsibility to resolve grievances. The Union states that Article 29 provides that the Facility Manager is the Agency's representative for resolving Union grievances and has the "authority" to enter into "binding" settlement agreements. Exceptions at 4.

      As the Union points out, the Authority has stated that the arbitrator's interpretation of the parties' agreement may not ignore the plain language of the agreement. Customs Service, 37 FLRA at 316-17, citing, Misco. In this case, the Arbitrator ordered reinstatement of the MOU to the extent it concerned impact and implementation bargaining. The Union has not demonstrated that the Arbitrator's interpretation and application of Article 29, which governs settlement agreements such as the MOU, is implausible, irrational or in manifest disregard of the parties' collective bargaining agreement. See, e.g., Social Security Administration, Woodlawn, Maryland and American Federation of Government Employees, Local 1923, 54 FLRA 1570, 1579-80 (1998). Thus, the Union has not established that the remedy fails to draw its essence from the collective bargaining agreement on this basis. [ v55 p774 ]

      Finally, the Union has not explained how the award violates Article 10, Section 1. [n5]  Accordingly, the Union has not demonstrated that the award fails to draw its essence from the collective bargaining agreement on the grounds set forth above.

      In sum, we find that the Union's exception provides no basis for finding the award deficient.

B.     The Award Does Not Violate Section 7114(c)(1)-(3) of the Statute

      The Union contends that the award violates section 7114(c)(1)-(3) of the Statute. The Union argues that review of the MOU was not in accordance with section 7114(c)(1)-(3) because the Lieutenant Colonel was not the head of the Agency. Where a party's exceptions involve an award's consistency with law, the Authority must review the questions of law raised by the arbitrator's award and the parties' exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

      Section 7114(c)(1)-(3) of the Statute provides that collective bargaining agreements are subject to approval by the head of the agency. Under sections 7114(c)(1)-(3), an agreement between any agency and an exclusive representative "shall be subject to approval by the head of the agency." The agency head is required to act within 30 days from the date the agreement is executed. See National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 49 FLRA 874, 891 (1994) (National Guard).

      Section 7114(c)(1)-(3) governs review of collective bargaining agreements, and amendments and supplements to master agreements. Id. There is no contention or evidence that Section 7114(c)(1)-(3) applies to the MOU settling the grievance in this case, or that the award violates these provisions of the Statute. The Arbitrator interpreted the collective bargaining agreement and found that it authorized the Lieutenant Colonel to approve or disapprove the MOU which settled the grievance. The Union has not shown that section 7114(c)(1)-(3) precludes an agency and exclusive representative from entering into an agreement which provides for the type of review the Arbitrator interpreted to be permitted. Therefore, the Union's exception provides no basis for finding that the award violates section 7114(c)(1)-(3) of the Statute.

C.      The Arbitrator Did Not Exceed Her Authority

      In its exception, the Union contends, without support, that the award violates section 7116(a)(1) and (5) of the Statute. The Union had claimed before the Arbitrator that the Agency's repudiation of the MOU violated both the collective bargaining agreement and section 7116 of the Statute. See Union's Post-hearing brief at 4 and 6. We construe the exception as an assertion that the Arbitrator failed to resolve the statutory claim submitted to her.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitte