United States, Department of Transportation, Federal Aviation Administration, Airways Facility Service, National Airway Systems , Engineering Division, Oklahoma City, Oklahoma (Agency) and National Air Traffic Controllers Association (Union)

[ v60 p565 ]

60 FLRA No. 112

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
AIRWAYS FACILITY SERVICE
NATIONAL AIRWAY SYSTEMS
ENGINEERING DIVISION
OKLAHOMA CITY, OKLAHOMA
(Agency)

and

NATIONAL AIR
TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

0-AR-3888

_____

DECISION

January 14, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator J. Gale Chumley filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator sustained a grievance alleging that the Agency failed to properly, fairly, and equally pay bargaining unit employees Operational Responsibility Differential Pay (ORD Pay) in accordance with an Agency regulation.

      For the reasons that follow, we deny the exceptions.

II.      Background and Arbitrator's Award

      The employees involved in this dispute are engineers employed in the Agency's AOS-200 unit with branches in Atlantic City, New Jersey and Oklahoma City, Oklahoma, and number approximately 90. "ORD Pay was . . . authorized by FAA Order 3550.13 [FAA Order] in 1998, which was entitled the Air Traffic Control Revitalization Premium Pay Act." Award at 2. In 2000, the employees chose the Union as their exclusive representative. A collective bargaining agreement (CBA) became effective in October 2000. The Union discovered that ORD Pay was being applied in an inconsistent manner at the Oklahoma City site. Then in April 2001, the Union discovered that ORD Pay was being applied in a completely different manner at the Atlantic City site. The Union tried to find out what the written policy for the payment of ORD Pay was by filing an information request with the Director of the unit. After about two months with no answer, the Union filed the same request with the Agency's Hotline. After about two weeks and having received no response from the Hotline, on July 24, 2001, the Union filed a grievance over the procedure for paying ORD.

      The grievance stated, in part, that:

The Union has been [made] aware by . . . unit employees that the Agency has failed to properly, fairly and equally compensate AOS-200 . . . unit employees the [ORD Pay] in accordance with FAA Order 3550.13 as changed June 17, 1988, to authorize payment of ORD to the engineering employees of . . . [u]nit AOS-200. Change Order 3550.13, CHG 2 Paragraph 4.5 EXPLANATION OF CHANGES states, that employees . . . will receive [ORD] for each day they are on official travel status.
Paragraph 4b.(1)[(c)].2. of the Changed Order 3350.13 states:
Employees in these two groups who are required to spend time in travel status providing on site operation assistance at airway facilities sectors will receive the operational differential for each day they are in official travel status.

Id. at 2-3. See also Union's Opposition, FAA Order attachment at 5. On August 13, 2001, the Agency determined that the grievance was untimely and denied it. The grievance was then submitted to arbitration. The Arbitrator stated the issue as follows:

The Union maintains that [employees] employed in [Unit AOS-200] are not being properly paid their [ORD Pay], at the Oklahoma City . . . facility.
The Agency believes that the ORD Pay is being paid in accordance with the rules and regulations . . . issued by the [FAA]. They also believe that the Union's grievance was not properly before the Arbitrator, because it was not timely filed in accordance with the requirements found in the [Agreement].

Id. at 1. [ v60 p566 ]

      On the issue of timeliness, according to the Arbitrator, the Agency asserted that the grievance was untimely under Article 3, Section 5a, with respect to the 20 day filing time requirement. [*]  The Arbitrator first noted that, in addressing claims of untimeliness, he had used the principle "that if the parties had jointly pursued the subject of the grievance after management had claimed it was untimely, then management had given up the right to claim timeliness as an issue." Id. at 5. The Arbitrator found that the Agency "believed the grievance should have been filed on April 17, 2001, when the Union found out about AOS-200 having two different procedures for paying ORD." Id.

      The Arbitrator stated that "nowhere in the Agreement is there any mention of the Agency having the right to determine when the Union should file a grievance." Id. The Arbitrator also stated that "when to file a grievance is the Union's decision, not the Agency's." Id. at 6. Notwithstanding this statement, the Arbitrator found that "[e]ven if the Agency had the right to determine when the Union should file a grievance . . . the AOS-200 management delayed the filing of the . . . grievance, by deliberately failing to answer the Union's request for information concerning . . . ORD pay policy." Id. The Arbitrator found that the "deliberate failure to answer the Union's request for information, . . . offered sufficient reason, by itself, to deny the Agency's claim of untimeliness . . . ." Id. The Arbitrator also found that the Agency's violation of the ORD pay policy was of a "continuing nature." Id. at 13. The Arbitrator found, therefore, that the grievance was timely.

      Turning to the merits, the Arbitrator found that the dispute arose because of the Director's "unfair and unreasonable procedure for determining how ORD should be paid to . . . [unit] employees." Id. at 10. According to the Arbitrator, in 1988 the U.S. Congress decided to reward employees whose main responsibility was to keep the Air Control system operating at a high level of efficiency. As a result, Congress ordered that an ORD pay of 5% be paid to those engineering employees whose main responsibility was to keep Air Control sites in good repair by furnishing operational assistance. The Arbitrator found that employees were to receive ORD pay for each day they were on official travel status.

      The Arbitrator found that at the beginning of ORD payments the Atlantic City and Oklahoma City sites were independent of each other and the Agency allowed management at each site to develop its own procedure for paying ORD. The Arbitrator found that in April 1997, the Agency decided to combine the two sites with the Director of the combined group located in Oklahoma City. The Arbitrator found that when the groups were combined the Atlantic City ORD policy was a "simple procedure which only required an eligible . . . employee to be assigned to perform some type of operational assistance at an Air Control site, and to be on travel status[,]" and that under these conditions the payment of ORD was automatic. Id.

      The Arbitrator found that the Oklahoma City site "used a procedure for paying ORD that was both unfair and unreasonable, which caused many . . . to lose some ORD pay to which they were entitled." Id. The Arbitrator found as follows:

The Director's . . . procedure for paying ORD to [these] employees . . . was to first determine if their work at an Air Control site to which they had been assigned could be identified as being either "Restoration" or Non-Restoration." That distinction, for which there is no written policy, was being used to deny ORD pay to many of the . . . employees at Oklahoma City. Those . . . employees would be assigned to a particular Air Control site to provide operating assistance, which put[] them on travel status, but they would have to wait until a salaried employee, such as a timekeeper, or her manager, decided whether the work performed . . . [would] be determined as being "restoration" or "non-restoration." Should the work be decided as "restoration" [the employee] would receive the ORD pay.

Id. at 11.

      The Arbitrator stated that the Director was asked to testify on the difference between restoration and non-restoration "and tried" to explain the difference but was not clear on the distinction. Id. at 12. The Arbitrator also found that there was testimony that the timekeeper and her manager would often take a request for ORD pay to the Director for a decision and that he would go directly to the employee and tell him his decision [ v60 p567 ] but would never provide a written answer. The Arbitrator noted that the Agency did not call the timekeeper or her manager to testify on how decisions were made concerning whether a travel assignment was "restoration" or "non-restoration." The Arbitrator found that the distinction between "restoration" and "non-restoration as applied by management was "arbitrary[.]" Id.

      Noting the ORD policy at Oklahoma City and that used at Atlantic City, the Arbitrator stated that "[i]nstead of using one . . . policy for all AOS-200 employees, the [former] Director . . . chose to continue the two separate ORD pay policies . . . ." Id. at 11. According to the Arbitrator, "[w]hen the current AOS-200 Director was placed in that position . . . he should have required the ORD policy being used at Atlantic City to [be applied] for all AOS-200 employees," but he continued using separate policies. Id. at 13. The Arbitrator found "extreme unfairness" in the application of the ORD policy, which lasted for almost 10 years, to the employees located at Oklahoma City. Id.

      Accordingly, the Arbitrator determined that the "procedure currently used for paying ORD to the . . . employees at Oklahoma City [should] be ended . . . [and] replaced by the . . . policy currently being used at the Atlantic City location . . . ." Id. The Arbitrator found that "[d]ue to the continuing nature of [the] violation, under the terms of the `Back Pay' Act the harmed employees are entitled to `back pay' with interest for a period of six years prior to the filing of the grievance on July 24, 2001." Id. at 13. The Arbitrator also found that the "Back Pay Act should cover the loss of ORD pay from the date of the grievance until this [a]ward was issued." Id.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency contends that the award is contrary to the Back Pay Act (BPA), 5 U.S.C. § 5596. The Agency states that the Arbitrator found that "back pay should have been awarded for a period beginning six (6) years before the filing of the grievance, making the liability period on back pay to be nine (9) years from the current date." Exceptions at 4.

      The Agency asserts that since the Union was not certified until May 2000, the Union did not have standing to represent the employees before that date. Thus, according to the Agency, the Arbitrator "lacked authority to grant a remedy preceding the certification of the bargaining unit." Id. The Agency argues that since a "`continuing violation' [was] found . . . then the period of back pay must be limited to 20 days before grievance filing." Id.

      The Agency further claims that the Arbitrator failed to find, as required by the BPA, that the Agency committed an unjustified or unwarranted personnel action. The Agency asserts that there "is no rationale for awarding six years of back pay[.]" Id. at 5. According to the Agency, the basis for the Arbitrator's conclusion that the affected employees are not "correctly receiving []ORD pay is that unit employees located at the . . . Atlantic City [site] are paid []ORD differently." Id. (emphasis in exceptions). The Agency contends that the Arbitrator's conclusion that employees "located in Atlantic City are being paid correctly was reached because it is `fair and reasonable,'" and that such conclusion is not supported by record evidence. Id. at 6 (quoting Award at 11).

      The Agency contends that each site within the unit had its own practice and that the Arbitrator "failed to address or analyze the legislation providing pay for [ORD] pay . . ., FAA Order 3550.13 . . ., or the . . . ORD policy documents presented at the hearing." Id. 5-6. The Agency contends that the Arbitrator "should be required to provide an acceptable rationale as to how [his] conclusion [on the] (Oklahoma City ORD pay method) rises to the level of an unjustified or unwarranted personnel action supporting a grant of back pay for six years." Id. at 6.

      In the alternative, the Agency contends that even if the Authority finds an unjustified or unwarranted personnel action, the Arbitrator has failed to establish how an award of six years' pay is substantiated. The Agency contends that there is no causal relationship between the violation found and the loss sustained. The Agency also asserts that if the continuing violation finding is sustained, then the Authority should limit any back pay award "to the contractual . . . period of 20 calendar days before the grievance was filed." Id. at 11. The Agency claims that "[s]ince the grievance was dated July 24, 2001, the period of redress should be limited to July 4, 2001, because all other violations occurring before [that date] would be untimely." Id.

      The Agency next asserts that by stating "`when to file a grievance is the Union's decision, not the Agency's[,]'" the Arbitrator exceeded his authority, and further contends that such statement does not draw its essence from the CBA. Id. at 7. Referring to Article 3, Section 5(a), the Agency contends that the CBA governs when grievances are properly filed. [ v60 p568 ]

      The Agency contends that the Arbitrator's statement that "[t]he fact management participated in the arbitration process was a waiver of arbitrability on the issue of timeliness is contrary to law and fails to draw its essence from the Agreement." Id. at 8. In support, the Agency cites AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir. 2000), and states that this decision holds that a party's participation in an arbitration does not preclude the party from challenging the arbitrator's authority in court. According to the Agency, it asserted that the grievance was untimely from the outset and never waived the arbitrability issue.

B.      Union's Opposition

      The Union asserts that the FAA Order dictates that certain employees who provide operational assistance are to receive ORD compensation. The Union contends that the Agency failed to comply with this Order and refused to consistently administer ORD in an appropriate manner.

      The Union claims that the Arbitrator's factual findings, including his reference to the "Congressional mandate" providing for ORD, show that the Arbitrator interpreted law providing for the payment of ORD and, based on such findings found that the Agency failed to comply with its regulation and, therefore, the employees are entitled to backpay. Opposition at 6. The Union contends that there is "clearly a causal connection between the employee[s'] loss of differential and the violation of FAA Order 3550.13 by the Agency." Id. at 8.

      The Union asserts that the FAA Order provides a 5% differential for AOS-200 employees engaged in operational assistance and "does not limit the differential to operational assistance for `restoration' purposes." Id. The Union contends that there "is no tangible difference between `restoration' operational assistance and `non-restoration' operational assistance." Id. The Union asserts that this "distinction does not exist for the . . . employees in Atlantic City . . . [who] are compensated for each instance of operational assistance regardless of whether or not it is restoration or non-restoration." Id. at 8-9. The Union also contends that the Agency's policy in Atlantic City is to fully comply with the FAA Order while in Oklahoma City, the Agency's policy to deviate from this Order "created an unwarranted personnel action." Id. at 9.

      The Union disputes the Agency's contention that the "employees are not entitled to the compensation for an unwarranted personnel action prior to the Union's certification . . . ." Id. at 9. The Union contends that Federal employees are entitled to a make whole remedy under the BPA regardless of their union status.

      The Union asserts that the Arbitrator's timeliness finding comports with law and the CBA. The Union claims that the Agency is "attempting to rely upon dicta to discredit th[is] finding." Id. at 10. The Union states that the Arbitrator deemed the violation to be "continuing in nature." Id. at 11.

IV.      Analysis and Conclusions

A.      Procedural Arbitrability

      The Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural arbitrability ruling itself. See, e.g., United States Dep't of the Treasury, Internal Revenue Service, Austin, Texas, 60 FLRA 360, 361 (2004) (IRS). However, the Authority has stated that a procedural arbitrability determination may be found deficient on the ground that it is contrary to law. See id. In addition, the Authority has stated that a procedural arbitrability determination may be found deficient on grounds that do not directly challenge the determination itself, which include claims that an arbitrator was biased or that the arbitrator exceeded his or her authority. See id. and the cases cited therein. 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. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996).

1.     The Award Does Not Fail to Draw Its Essence from the Parties' CBA or Exceed the Arbitrator's Authority

      The Agency asserts that the Arbitrator's statement that if parties "jointly pursued the subject of [a] grievance after management had claimed it was untimely, then management had given up the right to claim timeliness as an issue[,]" constitutes a waiver of arbitrability on the issue of timeliness and "fails to draw its essence from the [A]greement[.]" Id. at 8-9. The Agency's contention--that the award fails to draw its essence--directly challenges the Arbitrator's procedural arbitrability determination that the grievance was timely filed under the parties' CBA. Consistent with well-settled precedent, the Agency's claim does not provide a basis for finding the award deficient. See, e.g., IRS, 60 FLRA at 361-62 and the cases cited therein, including John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964) ("Once it is determined . . . that the parties are obligated [ v60 p569 ] to submit the subject matter of a dispute to arbitration, `procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator").

      Turning to the Agency's assertion that the Arbitrator exceeded his authority, the Agency contends that Article 3, Section 5(a) of the CBA governs when grievances are timely filed and the Arbitrator failed to confine his award to this provision. The Agency essentially asserts that the Arbitrator exceeded his authority by disregarding the 20 day time limit set forth in Article 3, Section 5(a).

      This exception also fails because the Arbitrator did not clearly violate an express limitation. Cf. United States Dep't of Defense Dependents Schools, 49 FLRA 120, 123 (1994) (arbitrator found to have exceeded his authority when he failed to adhere to a self imposed limitation of holding a hearing prior to issuing a final award). In the instant case, the Arbitrator properly exercised his power under the CBA and Authority case law to interpret Article 3, Section 5(a) in resolving the issue of whether the grievance was "timely filed in accordance with the requirements found in the [CBA]." Award at 6 and 1. As such, the Agency's exception is merely an attempt to recast the Arbitrator's contract interpretation action as an exceeded authority allegation. See, e.g., IRS, 60 FLRA at 362 and the cites therein (where arbitrator properly engaged in interpretation of agreement language, a party's attempt to challenge such interpretation as exceeds authority is not permitted). Accordingly, this exception does not provide a basis for finding the award deficient.

2.      The Award Is Not Contrary to Law

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Defense, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In so doing, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Agency has not demonstrated that the Arbitrator's award is contrary to AGCO. In AGCO, the court considered whether a party waived any objection to the arbitrability of certain matters when the party agreed to participate in the arbitration hearing and found that the evidence established that the party did not waive its right to object to the scope of the arbitration. The court held that where a party clearly and explicitly reserves the right to object to arbitrability, the party's participation in the arbitration does not preclude the party from challenging the arbitrator's authority in court.

      In this case, while the Arbitrator did state that he followed the principle that "if the parties had jointly pursued the subject of the grievance after management had claimed it was untimely, then management had given up the right to claim timeliness as an issue," the record evidence shows that the Arbitrator did address and resolve the timeliness issue raised by the Agency. Award at 5. The record shows that the Arbitrator's determination that the grievance was timely was not based on a determination that the Agency had waived its right to object to arbitrability. Rather, the Arbitrator's determination was based on his analysis of Article 3, Section 5(a) and the evidence. Accordingly, there is no basis to find that the Arbitrator's arbitrability determination is contrary to AGCO.

B.      Merits

The Award Is Not Contrary to the Back Pay Act

      The Authority has long held that, under the Back Pay Act, an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See, e.g., United States Dep't of Health and Human Services, 54 FLRA 1210, 1218-19 (1998). A violation of a governing agency regulation constitutes an unjustified or unwarranted personnel action. See, e.g., United States Dep't of the Air Force, Aerospace Guidance and Metrology Center, Newark AFB, Ohio, 41 FLRA 550, 558-59 (1991) (Newark AFB).

      Concerning the time period for which relief may be awarded, 5 U.S.C. § 5596(b)(4) provides, in relevant part, as follows: "[I]n no case may pay, allowances, or differentials be granted under this section for a period beginning more than 6 years before the date of the filing of a timely appeal[.]" The Authority has specifically held that this provision establishes the earliest date from which an award of back pay may commence. AFGE, Local 1156, 57 FLRA 602, 603 (2001); accord, AFGE Local 933, 58 FLRA at 482. The Authority has further held that "nothing in the plain wording of [§ 5596(b)(4)], or any other provision of the Back Pay [ v60 p570 ] Act, establishes when backpay must end." AFGE, Local 1156, 57 FLRA at 603.

      In this case, the Arbitrator determined that the grievants' entitlement to backpay commenced six years prior to the filing of the grievance and ended on the date of the issuance of the award. Consistent with this finding, the Arbitrator awarded backpay beginning six years prior to the filing of the grievance up to the date of the issuance of the award. The Arbitrator used the grievance filed on July 24, 2001, as the date of the filing of a timely appeal within the meaning of the Back Pay Act and awarded back pay for a period commencing 6 years prior to the filing of a timely appeal--the grievance. Such award conforms with the 6 year statute of limitations imposed by 5 U.S.C. § 5596(b)(4). See, e.g., AFGE Local 1156, 57 FLRA at 603. As the award is consistent with § 5596(b)(4), the Agency has not demonstrated that the period of entitlement awarded by the Arbitrator is contrary to the Back Pay Act. Also, the Agency has not demonstrated that the Union's certification as exclusive representative in 2000 limits the grievants' entitlement. There is nothing in the BPA that "implicitly or explicitly, establishe[s] a filing period for negotiated grievance procedures[,]" or requires that the period of entitlement commence with the date of an exclusive representative's certification. AFGE, Local 933, 58 FLRA 480, 482 (2003). Thus, the Agency has not shown that an employee's entitlement to backpay commences with the date of an exclusive representative's date of c