National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C.

[ v55 p1025 ]

55 FLRA No. 167

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
(Agency)

0-AR-3104

_____

DECISION

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

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 found that in setting pay for certain employees, the Agency did not violate the parties' collective bargaining agreement. For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Union filed a grievance in response to the Agency's decision to pay at the GS-9, Step 10 level, certain air traffic controllers rehired as a result of President Clinton's directive rescinding the ban on their employment. When the grievance was not resolved, it was submitted to arbitration, where the parties jointly stipulated the following issues:

Did the Agency violate Article 37, Section 1, of the Parties' collective bargaining agreement in setting pay for controllers returning to the Agency as a result of the Memorandum issued by President Clinton on August 12, 1993? If so, what shall be the remedy?
Is the Union's grievance timely filed? If so, is the Union's grievance arbitrable?

Award at 2-3. [n2] 

      The Arbitrator concluded that the grievance was timely filed because the practices disputed by the Union were continuing. Additionally, the Arbitrator found the grievance substantively arbitrable because the parties' joint stipulation of the issue concerned whether the Agency had violated the parties' agreement, rather than whether the Agency had properly classified the positions of the returning controllers.

      In response to the Union's assertion that the Agency had violated the parties' agreement "by failing to pay returning PATCO controllers the maximum rate of pay allowable by law," the Arbitrator stated that:

In order to prevail, the Union must show . . . that the Agency either took an action [that] it was barred from taking by the terms of the Agreement, or (more likely in this case) failed to take some required action.

Award at 14. The Arbitrator concluded that the Union "failed to make this showing." Id.

      According to the Arbitrator, the Union argued that Article 37, Section 1, required the Agency to exercise "the flexibility authorized" by the Office of Personnel Management to hire the controllers at the grades they held when they were fired. Id. at 14-15. The Arbitrator rejected this argument. In doing so, he stated that interpreting the parties' agreement as requiring the Agency to hire controllers at particular grades would necessarily involve Agency decisions about the classification of positions and the assignment of work and, as such, would be unenforceable. Id. at 15.

      Having determined that the parties' agreement did not require the Agency to hire controllers at a particular grade, the Arbitrator stated that the only remaining "pay-setting" issue involved the "'highest previous rate' rule established by OPM . . . and the Agency's proce- [ v55 p1026 ] dures for implementing this rule[.]" Id. at 15 (citing 5 C.F.R. §§ 531.202 and 531.203(c) and FAA Order 3550.14). [n3]  The Arbitrator concluded that the Union had not demonstrated that the Agency failed to set pay at the highest rate possible because of "the fact that the Agency has chosen to pay returning controllers at the top step of GS-9[.]" Id. at 15-16.

      The Arbitrator also found that the Agency did not violate Article 84, Section 3 of the parties' agreement, which requires the Agency to "apply its rules, regulations, and directives and orders in a fair and equitable manner." The Arbitrator stated that, although the Agency hired some air traffic controllers at a higher grade than others, this did not constitute unfair or inequitable treatment. In this respect, the Arbitrator stated that Article 84 "does not require identical treatment of bargaining unit members," and concluded that the Agency had a reasonable basis for distinguishing between air traffic controllers re-hired from the Department of Defense and air traffic controllers re-hired from other non-governmental employment. Id. at 16.

      Based on the foregoing, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that the award:

is inherently contradictory and thereby does not draw its essence from the contract. Furthermore, the decision fails to conform to law, rule, or regulation.

Exceptions at 3.

      The Union maintains that "after finding in the Union's favor on the issues of arbitrability, the Arbitrator then found the merits essentially non-arbitrable." Id. The Union asserts that because the Arbitrator found the grievance arbitrable, he should have resolved the merits of the dispute in the Union's favor by relying on the wording of the parties' agreement. In this respect, the Union contends that Article 37, Section 1 required the Agency to pay the rehired controllers the "maximum compensation allowable by law," and that, according to FPM Letter 335-16 and FAA Order 3550.14, the highest compensation allowable was that for the highest grade previously held. [n4]  Id. at 4. The Union argues further that the Arbitrator also should have found that the Agency's practice of hiring controllers transferring from the Department of Defense at higher grades than those allowed for other re-hired controllers was inconsistent with Article 84's requirement of equitable treatment.

      With respect to whether the award is contrary to law, the Union asserts that:

Whether the Authority views this matter in terms of the employer's failure to follow the labor agreement, OPM guidance and Agency regulations, or in the lack of uniformity with respect to its application of its pay setting practices, it is clear that the FAA did not provide for the maximum compensation allowable by law. In failing to reach this conclusion, [the arbitrator's] decision is contrary to law, and rule, and fails to draw its essence from the parties' collective bargaining agreement.

Id. at 9.

B.     Agency's Opposition

      The Agency asserts that the Union has not demonstrated that the Arbitrator contradicted himself by finding both that the award was arbitrable, and that the Agency did not violate the contract. In this respect, the Agency argues that the arbitrator's conclusion that the grievance is arbitrable did not guarantee that the Arbitrator would find for the Union on the merits. The Agency also argues that the Union has not cited "any specific law or regulation allegedly violated," and that, as a result, the Union has failed to support its argument that the award is contrary to law. Opposition at 5. [ v55 p1027 ]

IV.     Analysis and Conclusions

A.     The Award Is Not Contrary to Law

      The Union has not demonstrated that the Arbitrator's award is contrary to law, rule, or regulation. Both the FPM letter and the Agency regulation, cited by the Union, permit the Agency to pay a rehired employee at his/her former grade and step. However, neither the letter nor the regulation require the Agency to pay a rehired employee at the highest grade and step. [n5]  Accordingly, we find that the Union has not demonstrated that the award is contrary to law. [n6]  See Professional Airways Systems Specialists, District No. 1, MEBA/NMU (AFL-CIO) and U.S. Department of Transportation, Federal Aviation Administration, Office of Aviation Systems Standards, Battle Creek Flight Inspection Field Office, Battle Creek, Michigan, 48 FLRA 764, 768-69 (1993).

B.     The Award Is Not Contradictory

      An award that is incomplete, ambiguous, or contradictory so as to make implementation impossible is deficient. See American Federation of Government Employees, Local 1843 and U.S. Department of Veterans Affairs, Medical Center, Northport, New York, 51 FLRA 444, 448 (1995). In order for an award to be found deficient on this ground, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. See, e.g., Veterans Administration Hospital, Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA 64, 66 (1981) (emphasis added).

      The Arbitrator's finding that the grievance was arbitrable is not contradicted by his conclusion that the Agency did not violate the contract. Even if such findings were inconsistent, the Union has failed to show that implementation of the award is impossible.

      Accordingly, we deny this exception.

C.     The Award Draws Its Essence from the Collective Bargaining Agreement

      The Authority will find an arbitration award deficient as failing to draw its essence from the parties' agreement when the appealing party establishes that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement as to "manifest an infidelity to the obligation of the arbitrator"; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or 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) (DOL).

      The Arbitrator concluded that Article 37 does not require the Agency to rehire air traffic controllers at the highest grade they previously held. The Arbitrator interpreted the contract provision as governing the step --not the grade -- at which controllers were rehired, and he concluded that the Union presented no evidence that the Agency was authorized to rehire controllers at higher than step 10, the step (of a GS-9 position) at which all three controllers who testified at the hearing were rehired.

      The Union asserts that the Arbitrator erred in interpreting the parties' agreement because the "maximum compensation allowable by law" referenced in Article 37 requires that the controllers be paid at higher grades, not just higher steps.

      The Union's interpretation of Article 37, Section 1 is plausible. However, the Arbitrator's interpretation of the agreement is plausible also. The Union has not established that the Arbitrator's interpretation of the agreement provision is implausible, irrational, or unconnected to the wording of the agreement.

      The Union also asserts the Arbitrator erred in finding that the Agency's hiring of some controllers at higher grades than others does not violate Article 84. The Union bases this assertion solely on its claim that the Agency did not treat all controllers identically. The Arbitrator's interpretation of Article 84 as not requiring such identity of treatment is plausible. As such, the Union has failed to establish that the Arbitrator's interpretation of Article 84 fails to draw its essence from the agreement.

      The Authority's long-established standard in reviewing an arbitrator's interpretation of contract provisions is deferential because it was the arbitrator's interpretation for which the parties bargained. See Department of Health and Human Services, Social [ v55 p1028 ] Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79, 88 (1988). See also United Paperworkers International v. Misco, Inc., 484 U.S. 29, 37-38 (1987) (Supreme Court advised that when parties have agreed to have their dispute settled by an arbitrator, it is the arbitrator's view of the meaning of the agreement they have agreed to accept). Based on application of this standard, we deny this exception. [n7] 

V.     Decision

      The Union's exceptions are denied.


File 1: Authority's Decision in 55 FLRA No. 167
File 2: Opinion of Member Wasserman


Footnote # 1 for 55 FLRA No. 167 - Authority's Decision

   Member Wasserman's dissenting opinion appears at the end of this decision.


Footnote # 2 for 55 FLRA No. 167 - Authority's Decision

   Article 37, Section 1 provides that:

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.

Award at 4.


Footnote # 3 for 55 FLRA No. 167 - Authority's Decision

   5 C.F.R. § 531.202 defines "highest previous rate" as follows:

(1)     The highest actual rate of basic pay previously received by an individual while employed in a position in a branch of the Federal Government . . . .
(2)     The actual rate of basic pay for the highest grade and step previously held by an individual while employed in a position subject to the General Schedule.
The Union quotes FAA Order 3550.14 as follows:
As a general rule, a person who is reemployed after a break in service is paid a salary based as closely as possible on the currently authorized rate for the grade and step last held prior to separation.

Exceptions at 5.


Footnote # 4 for 55 FLRA No. 167 - Authority's Decision

   The Union describes FPM Letter 335-16 as follows:

Agencies may "noncompetitively reinstate transfer, or promote an employee up to the highest grade previously held on a permanent basis . . . provided the employee was not demoted or separated . . . 'for cause' reasons."

Exceptions at 4 (emphasis and ellipses added by Union).


Footnote # 5 for 55 FLRA No. 167 - Authority's Decision

   Although the FPM was abolished effective December 31, 1994, we consider its applicability here because the Recruitment Notice, under which the PATCO controllers were re-hired, was open from September 1 to October 15, 1993.


Footnote # 6 for 55 FLRA No. 167 - Authority's Decision

   Contrary to our dissenting colleague, we find no basis in the Union's exceptions for concluding that the Union is claiming that the award is deficient as contrary to sections 7103(a)(14)(B) and 7121(c)(5) of the Statute. In fact, the Union makes no claims at all regarding these sections of the Statute.


Footnote # 7 for 55 FLRA No. 167 - Authority's Decision

   In denying the exception, we do not necessarily endorse the Arbitrator's reasoning in arriving at his interpretation of the agreement. We also do not endorse his statements regarding whether the agreement would be enforceable if it meant something other than how he interpreted it. It is long and well established that the Authority does not review arbitral reasoning in interpreting contract provisions. See, e.g., U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207 (1991) (the Authority relied on the Supreme Court's reasoning in Steelworkers v. Enterprise Wheel, 363 U.S. 593, 598 (1960), holding that in order to e