United States, Department of Transportation, Federal Aviation Administration (Agency) and National Air, Traffic Controllers , Association (Union)

[ v61 p854 ]

61 FLRA No. 171

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR
TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

0-AR-4011

_____

DECISION

November 1, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator James E. Reed 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 determined that the Agency violated a settlement agreement when it failed to consider calling in additional staff on the day in dispute. For the reasons that follow, we deny the Agency's exceptions to the award.

II.      Background and Arbitrator's Award

      On August 10, 2003, the recommended staffing level for air traffic controllers on the mid-shift at the Anchorage Air Route Traffic Control Center was four controllers. When one of the scheduled controllers was granted sick leave, which reduced the number of controllers on the mid-shift to three, the Agency determined that a fourth controller was not needed and staffing for the mid-shift was left at three. The Agency made no attempt to call in a controller on overtime. According to the Agency, management looked at the projected air traffic for the shift and determined that three controllers could handle the projected volume.

      Grievances were filed claiming that the Agency's failure to call in a controller on overtime or to utilize any other means to correct the staffing shortage violated the parties' collective bargaining agreement (cba) and a settlement agreement in a previous staffing grievance. The grievances were not resolved and were consolidated and submitted to arbitration.

      The parties were unable to agree on the issue for resolution by the Arbitrator. The Union framed the issue as whether the Agency violated local agreements or the cba when it failed to take efforts to meet minimum staffing levels in accordance with a settlement agreement resolving a 2001 staffing grievance. The Agency framed the issue as whether it violated the cba not attempting to call in another controller on August 10. The Arbitrator stated the issue as whether the Agency violated the cba or the settlement agreement when it failed to consider calling in additional staff on that date. See Award at 1.

      The Arbitrator determined that the Agency violated the settlement agreement and sustained the grievances. The Arbitrator noted that in settlement of the earlier staffing grievance, the Agency agreed, as follows:

When mid shift staffing numbers drop below recommended minimums . . . management will take appropriate steps to fill to recommended minimum staffing levels. The first option will be to assign overtime. This is not a guarantee of mandatory overtime; however, management will make every reasonable effort to remain at the recommended staffing levels.

Id. at 6 (quoting settlement agreement). The Arbitrator stated that:

In this case the facts are exactly the same as they were in 2001 when the letter, with the exception of the area of responsibilities, was written and the settlement reached; these grievances deal with the exact same issue. Since the settlement in 2001 is exactly the same as the issue here, I can see no reason to disturb the precedence that has been established and has worked for some time, from 2001 until the present grievances. There is no reason to not use the principles of stare decisis. The issue is settled, let it stay settled.

Id. at 7. Accordingly, as a remedy, the Arbitrator directed the Agency "to reestablish its policy of treating staffing issues in the same spirit as it did in 2001 after the grievance settlement had been reached." Id. [ v61 p855 ]

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency contends that the award is deficient because the Arbitrator exceeded his authority and because the award fails to draw its essence from the cba and the settlement agreement and is contrary to management's right to assign work under § 7106(a)(2)(B) of the Statute.

      In contending that the Arbitrator exceeded his authority, the Agency notes that the parties were unable to stipulate the issue for resolution. The Agency asserts that under Article 9, Section 13 [*]  of the parties' collective bargaining agreement, arbitrators are required to confine themselves to the precise issue submitted for arbitration. The Agency claims that the award is deficient because the Arbitrator failed to choose one of the issue statements as proposed by the parties or to frame the issue himself.

      In contending that the award fails to draw its essence from the cba and the settlement agreement, the Agency notes that the resolution of the grievances involved the settlement of an earlier grievance in 2001. The Agency argues that the settlement was not determinative of the grievances in this case and the Arbitrator's determination otherwise is deficient. The Agency asserts that the Arbitrator's rationale that the settlement agreement applied in this case cannot be rationally derived from the settlement agreement or the parties' cba and does not represent a plausible interpretation of either agreement.

      In contending that the award is contrary to management's right to assign work, the Agency argues that the award affects management's right by limiting management's "authority to leave a workstation/post vacant on a shift[.]" Exceptions at 5. Citing United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), the Agency asserts that the award is deficient because even assuming that the settlement agreement was negotiated pursuant to § 7106(b)(3), the award fails to satisfy prong I of BEP because the Arbitrator's enforcement of the settlement agreement excessively interferes with management's right to assign work. The Agency maintains that the Arbitrator's enforcement of the settlement agreement excessively interferes with management's right because under the enforcement there is no "situation in which the agency could choose not to assign an employee to a vacant workstation/post." Exceptions at 6.

B.      Union's Opposition

      The Union contends that the Agency's exceptions provide no basis for finding the award deficient and should be denied.

      The Union argues that the Agency is factually incorrect in arguing that the Arbitrator failed to formulate the issue for resolution. The Union asserts that on page 1 of the award, the Arbitrator specifically stated that the issue was whether the Agency violated the cba or the settlement agreement when it failed to consider calling in additional staff on August 10. Although the Union acknowledges that the Arbitrator's formulation of the issue did not adopt either parties' formulation of the issue, the Union claims that the Arbitrator's formulation was well within the Arbitrator's authority and that the award resolves precisely the issue as formulated.

      The Union argues that the award draws its essence from both the settlement agreement and the cba. The Union asserts that the award is consistent with the wording of the settlement agreement and Article 8 of the cba, which encourages local solutions to grievances.

      The Union argues that the award is not contrary to management's right to assign work because it merely enforces the parties' agreement on minimum staffing of the mid-shift. The Union maintains that guaranteeing staffing numbers on the mid-shift is negotiable and enforceable. See Opposition at 5 (citing NATCA, AFL-CIO, 61 FLRA 336 (2005) (provision 1) (NATCA)).

IV.      Analysis and Conclusions

A.      The Arbitrator did not exceed his authority.

      Arbitrators exceed their authority by failing to resolve an issue submitted to arbitration, resolving an issue not submitted to arbitration, disregarding specific limitations on their authority, or awarding relief to persons who are not encompassed by the grievance. See, e.g., United States Dep't of Def., Army & Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996).

      We reject the Agency's argument that the Arbitrator failed to frame the issue for resolution. On page 1 of the award, the Arbitrator specifically set forth the issue for resolution as whether the Agency violated the cba or the settlement agreement when it failed to consider calling in additional staff on August 10, and the award resolves precisely this issue in sustaining the grievance. [ v61 p856 ] Moreover, the Agency fails to establish that Article 9, Section 13 in any way limited the Arbitrator to choosing one of the parties' statement of the issue. Consequently, the Agency fails to establish that the Arbitrator exceeded his authority. Accordingly, we deny this exception.

B.      The award does not fail to draw its essence from the cba and the
          settlement agreement.

      The Authority will find that an award fails to draw its essence from an 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 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 Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). We conclude that the Agency provides no basis for finding that the award fails to draw its essence from either the settlement agreement or the parties' collective bargaining agreement.

      The Arbitrator noted that in settlement of the earlier staffing grievance, the Agency agreed, as follows:

When mid shift staffing numbers drop below recommended minimums . . . management will take appropriate steps to fill to recommended minimum staffing levels. The first option will be to assign overtime. This is not a guarantee of mandatory overtime; however, management will make every reasonable effort to remain at the recommended staffing levels.

Award at 6 (quoting settlement agreement). In ordering enforcement of the settlement agreement, the Arbitrator explained that the grievances in this case deal with "the exact same issue" and that he saw no reason to disturb the precedence of the earlier settlement. Id. at 7. The Agency fails to establish that the Arbitrator's application of the settlement agreement in these circumstances is implausible or irrational.

      The Agency's contention that the Arbitrator's application of the settlement agreement does not draw its essence from the parties' cba constitutes a bare assertion and likewise fails to establish that the award is deficient. The Agency cites no provisions of the collective bargaining agreement. Consequently, there is no basis on which we can conclude that the Arbitrator's application of the collective bargaining agreement in this case is implausible or irrational. See AFGE Local 1858, 59 FLRA 713, 715 (2004).

      Accordingly, we deny this exception.

C.      The award is not contrary to management's right to assign work.

      When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See, e.g., NTEU Chapter 24, 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, e.g., NFFE Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      When resolving an exception which contends that the award is contrary to a management right under § 7106(a) of the Statute, the Authority first determines whether the award affects the exercise of a management right. If the award affects the exercise of a management right, the Authority applies the two-prong test established in the Authority's decision in BEP, 53 FLRA 146. Under prong I of the BEP test, as applicable in this case, the Authority considers whether the award enforces a contract provision negotiated pursuant to § 7106(b) of the Statute. See BEP, 53 FLRA at 153. Under prong II, the Authority considers whether the award reconstructs what management would have done had it not violated the contract provision in dispute. See id. at 154.

      The settlement agreement prescribed that management would make every reasonable effort to remain at the recommended staffing levels. Thus, as argued by the Agency, enforcement of the settlement agreement limits management's authority to leave a workstation or post vacant on a shift. By enforcing the settlement agreement, the award clearly affects management's right to assign work under § 7106(a)(2)(B) of the Statute. See NATCA, 61 FLRA at 338.

      The Agency further argues that the award is deficient because it fails to satisfy prong I of BEP. The Agency asserts that even assuming that the settlement agreement was an arrangement for employees adversely affected by management's right to assign work, the agreement was not enforceable by the Arbitrator pursuant to § 7106(b)(3) because enforcement of the settlement agreement excessively interferes with management's right to assign work. The Agency does not address whether, as the Union asserts, the award satisfies prong I because the settlement agreement was [ v61 p856 ] negotiated pursuant to § 7106(b)(1) of the Statute. In reviewing that agreement, we agree with the Union, for the following reasons, that the award satisfies prong I of BEP because the settlement agreement was negotiated pursuant to § 7106(b)(1).

      As noted by the Union, in NATCA, the Authority concluded that the following provision had been negotiated by the parties pursuant to § 7106(b)(1) of the Statute: "All mid-shifts in the 2-2-1 schedules will be staffed with at least four [controllers]." See id. at 336, 338. The Authority found that this provision affected management's right to assign work. However, the Authority noted that longstanding Authority precedent establishes that the number of employees assigned to a tour of duty is a matter pertaining to an agency's staffing patterns about which an agency can elect to bargain under § 7106(b)(1) and once bargained is a matter enforceable in arbitration. See id. at 338. Consequently, the Authority determined that the provision pertained to the agency's staffing patterns and was enforceable notwithstanding the effect on management's right to assign work. See id.

      Applying NATCA, we find that the settlement agreement in this case pertains to the Agency's staffing patterns within the meaning of § 7106(b)(1). The settlement agreement, like the provision in NATCA, prescribes minimum staffing levels and additionally provides that the Agency will take appropriate steps to staff at the prescribed levels. As a matter negotiated pursuant to § 7106(b)(1), the enforcement of the settlement agreement was consistent with management's right to assign work under § 7106(a)(2)(B) and satisfies prong I of BEP. See United States Dep't of Transportation, Fed. Aviation Admin., 60 FLRA 159, 164 (2004) (arbitrator's enforcement of a contract provision on the minimum staffing level of field technical employees satisfied prong I because the contract provision was negotiated pursuant to § 7106(b)(1)). Consequently, the Agency has failed to establish that the enforcement of the settlement agreement impermissibly affects the exercise of its right to assign work under § 7106(a)(2)(B).

      As the Agency does not raise prong II, we do not address prong II, and we deny the Agency's exception because the awa