National Air Traffic Controllers Association (Union) and U.S. Department of Transportation, Federal Aviation Administration, Dallas, Texas (Agency)

[ v56 p733 ]

56 FLRA No. 121

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
DALLAS, TEXAS
(Agency)

0-AR-3302

_____

DECISION

September 26, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator A. Dale Allen, Jr. 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.

II.     Background and Arbitration Award

      The Union filed a grievance over the failure of the Agency to grant Quality Step Increases (QSIs) or Time-Off Awards to approximately 170 employees as a reward for their participation in the implementation of the Metroplex plan. [n1]  The Metroplex plan was a project designed by the Agency to improve the efficiency of the Dallas-Fort Worth (DFW) International Airport. The Metroplex plan entailed reconfiguring the national airspace from DFW northwest to the Mississippi River and establishing procedures for controlling air traffic in the resulting reconfigured national airspace.

      The grievance was submitted to arbitration. The Arbitrator framed the issue to be resolved as follows: "Did the Agency act improperly by not issuing Quality Step Increases or Time-Off Awards during 1997 to all eligible controllers at DFW/D10? If so, what is the appropriate remedy?" Award at 3.

      The Arbitrator examined the interplay among the applicable provisions of the parties' comprehensive collective bargaining agreement(CBA), the Performance Planning and Recognition System (PPRS) and the parties' November 2, 1995, Memorandum of Understanding (MOU). [n2]  The Arbitrator noted that Chapter 2 of the PPRS states that, "Employees may not appeal or grieve decisions to grant or not to grant monetary recognition or amounts of monetary recognition." Id. at 10. The Arbitrator found that the PPRS "evidently was mutually developed by the parties." Id. In addition, the Arbitrator found that "the parties' November 2, 1995, MOU authorizes implementation of the PPRS and ATRP [Air Traffic Recognition Program] as a performance recognition program." Id. Consequently, the Arbitrator found that "elements" of the PPRS constitute "`negotiated' provisions" and "are not unilateral policies of the Agency." Id.

      The Arbitrator rejected the Union's argument that the dispute over the monetary recognition awards was covered by the negotiated grievance procedure in the comprehensive CBA. The Arbitrator found that it was undisputed that, under the PPRS, there can be no appeal or grievance of an Agency decision whether or not to grant monetary recognition awards. Id.

      The Arbitrator also stated that it was undisputed that the Division Manager has the exclusive authority to grant monetary recognition awards. Id. The Arbitrator found that, although the monetary recognition awards were recommended for approval by management at the facility level, the Division Manager did not approve such awards. The Arbitrator stated that the employees may have had "misunderstandings" regarding the status of the monetary recognition awards in that the Agency at the facility level may have "erroneously conveyed" to [ v56 p734 ] the employees that the monetary recognition awards had been approved. Id. at 12. Nevertheless, the Arbitrator found that the Division Manager was "certain" that he had not approved the monetary recognition awards because it "would have cost the region $600,000 to $800,000 annually." Id. at 11-12.

      In view of his determination that the Division Manager did not approve the monetary recognition awards, the Arbitrator concluded that, under Chapter 2 of the PPRS, the grievance was both not arbitrable and without merit. Id. at 12. Accordingly, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the Arbitrator's finding that the PPRS supersedes the comprehensive CBA does not draw its essence from the comprehensive CBA or the November 1995 MOU. The Union claims that the Arbitrator erred in finding that the PPRS constitutes a "`negotiated' provision." Exceptions at 3. The Union asserts that both Union and Agency testimony establish that the Agency developed the PPRS unilaterally and without input from the Union. The Union states that the Agency presented the PPRS to the Union only for impact and implementation bargaining that resulted in the November 1995 MOU.

      The Union argues that, in the November 1995 MOU, it did not relinquish any rights to file a grievance under the negotiated grievance procedure in the comprehensive CBA. Rather, the Union asserts that the comprehensive CBA indicates that "the parties intended appeal and review rights to remain available under the PPRS despite Chapter 2 of the PPRS." Id. at 4. In support, the Union cites Article 84, Section 1 of the comprehensive CBA and states that it provides as follows: "Any provision of this Agreement shall be determined a valid exception to, and shall supercede any existing or future Employer rules, regulations, orders and practices which conflict with the Agreement." Id.

      Furthermore, the Union contends that the Arbitrator erred in finding that the Agency did not approve the monetary recognition awards. The Union argues that the evidence established that the Agency had generated documents indicating that the awards had been approved. The Union points to evidence that at a meeting of supervisors the facility manager stated that the monetary recognition awards had been approved and were pending.

      The Union also contends that the Arbitrator erred in finding that, at the cost of $600,000 to $800,000 annually for the region, the monetary recognition awards would be cost prohibitive. The Union asserts that the evidence establishes that the monetary recognition awards would not become part of the Agency award budget after the first year, but would be an increase in the employees' wages. The Union adds that the Division Manager could request additional funding to cover short-falls in the budget.

B.     Agency's Opposition

      The Agency contends that the November 1995 MOU shows that the Agency and the Union negotiated the PPRS. The Union asserts that in the MOU the parties agreed to the "unconstrained right of the Agency to disapprove an award" as provided in the PPRS. Opposition at 6. The Agency adds that Article 84, Section 1 of the comprehensive CBA is inapplicable because there is no conflict between the CBA and the PPRS.

      Furthermore, the Agency contends that the record supports the Arbitrator's finding that the Agency did not approve the monetary recognition awards. The Agency states that the employees may have misunderstood that the approval of the monetary recognition awards by management at the facility level constituted proper approval of the awards. The Agency adds that the Union's assertion that the Arbitrator erred in finding that the monetary recognition awards would be cost prohibitive is baseless because the approval of the awards is within the discretion of the Division Manager.

IV.     Analysis and Conclusions

      The Arbitrator's Determination on Substantive Arbitrability Does Not Fail to Draws Its Essence From the Comprehensive CBA and the MOU

      The Union contends that the Arbitrator's finding that the PPRS supersedes the comprehensive CBA does not draw its essence from the comprehensive CBA or the November 1995 MOU. The Union argues that, in the November 1995 MOU, it did not relinquish any rights to file a grievance under the negotiated grievance procedure in the comprehensive CBA. In support, the Union cites Article 84, Section 1 of the comprehensive CBA and states that it provides as follows: "Any provision of this Agreement shall be determined a valid exception to, and shall supercede any existing or future Employer rules, regulations, orders and practices which conflict with the Agreement." Exceptions at 4. We construe these contentions as a claim that the Arbitrator's determination on substantive arbitrability fails to draw [ v56 p735 ] its essence from the comprehensive CBA and the MOU. [n3] 

      For an arbitrator's award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established 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 purpose 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.

      In this case, in concluding that the grievance was not arbitrable, the Arbitrator interpreted and applied the applicable provisions of the comprehensive CBA, the PPRS and the November 1995 MOU. The Arbitrator found, based in part on his interpretation of the MOU, that the PPRS constitutes a negotiated provision between the parties.

      The Arbitrator also interpreted the comprehensive CBA to mean that if the PPRS dictates there will be no negotiated grievance procedure available to dispute the granting of monetary recognition awards, then the PPRS supersedes the negotiated grievance procedure that would otherwise allow unit employees to grieve disputes over the granting of monetary recognition awards.

      Article 84, Section 1 of the comprehensive CBA, relied on by the Union, essentially provides that if there is a conflict between an Agency rule or regulation and a provision of the comprehensive agreement, the agreement prevails. As the Arbitrator found that the PPRS was a negotiated provision and not an Agency rule or regulation, it is evident that he found that Article 84, Section 1 did not apply in this case.

      The Union has not demonstrated that such interpretations of the comprehensive CBA, including Article 84, Section 1, and the November 1995 MOU disregard those agreements or are implausible, irrational, or unfounded. Consequently, the Union's exception provides no basis for finding that the award regarding substantive arbitrability fails to draw its essence from the agreements.

      Therefore, the exception provides no basis for finding the award deficient. [n4] 

V.     Decision

      The Union's exception is denied.


APPENDIX

Collective Bargaining Agreement

Article 84. Effect of Agreement

      Section 2. All matters addressed by this Agreement, except as noted in Section 1, shall be governed by any such Employer rules, regulations, directives, orders and/or practices.

Performance Planning and Recognition System

Chapter 2 - Recognition

      Employees may not appeal or grieve decisions to grant or not to grant monetary recognition or amounts of monetary recognition.

November 2, 1995, Memorandum of Understanding

      Section 1. . . . It [MOU] represents the parties' agreement concerning the implementation of a two-tiered performance management system as outlined in the Performance Planning and Recognition System, . . . and the Air Traffic recognition program . . . . The parties agree that the PPRS,  . . . and the Air Traffic recognition program will be implemented for NATCA employees effective January 1, 1996.

. . . .

      Section 4. Nothing in this agreement constitutes a waiver of any statutory or contractual right of the Union [ v56 p736 ] or Agency or the supervisor's authority to approve or disapprove an award.

. . . .

      Section 6. This agreement shall be administered consistent with applicable laws, regulations, and the parties' national agreement. Changes to this agreement or the Agency's policy shall be made in accordance with the provisions of Article 7 of the parties' agreement.

. . . .



Footnote # 1 for 56 FLRA No. 121

   The grievance alleged as follows:

Numerous persons in the bargaining unit were told they were to expect a QSI on their next paycheck, that they had been rewarded for their work during the implementation of the DFW Metroplex plan, which was of a superior accomplishment, contributed to the efficiency and economy of DFW Airport. Management interviewed persons on how they would like to be rewarded, by either 80 hrs off or QSI. These choices were offered by 1st line supervisors, the notice of approval was provided and further substantiated by 2nd line management. These awards have not been realized as of this date. Each bargaining unit person be made whole in every way to include, but not limited to, $25,000 cash settlement per individual.

Award at 3.


Footnote # 2 for 56 FLRA No. 121

   The provisions of the comprehensive CBA, the PPRS and the parties' November 1995 MOU, as set forth by the Arbitrator, are provided in the Appendix to this decision.


Footnote # 3 for 56 FLRA No. 121

   An arbitrator's determination as to substantive arb