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

[ v62 p54 ]

62 FLRA No. 15

UNITED STATES
DEPARTMENTOF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION, AFL-CIO
(Union)

0-AR-4141

_____

DECISION

March 23, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert T. Simmelkjaer 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 found that the grievance was not barred by an earlier-filed unfair labor practice (ULP) charge. The Arbitrator sustained the grievance alleging that the Agency violated the parties' agreement by unilaterally changing basic watch schedules. To remedy the violation, the Arbitrator ordered a return to the status quo and backpay. For the reasons set forth below, we find that the award is contrary to law and set it aside.

II.     Background and Arbitrator's Award

      The Union filed a ULP charge alleging that the Agency violated the Statute by placing "individuals on a new schedule without completing an appropriate bidding process[.]" Award at 8. That same day, the Union also filed a grievance alleging that the Agency implemented "a unilateral change in the basic watch schedule" in violation of the parties' agreement. Id. The Union later withdrew the ULP charge. See id. at 19. The Union's grievance was unresolved and was submitted to arbitration, where the Arbitrator first considered whether "the instant grievance [was] arbitrable." Id. at 2.

      The Arbitrator explained that, in order to show that the grievance was barred by § 7116(d) of the Statute and, therefore, not arbitrable, the Agency had to show that: (1) the issue raised in the grievance was the same issue raised under the ULP procedure; (2) such issue was earlier filed under the ULP procedure; and (3) the selection of the ULP procedure was at the Union's discretion. [*]  See id. at 15. As to the first and third requirements, the Arbitrator found that the issues and legal theories advanced in both the ULP charge and the grievance were the same and that the Union, in its discretion, selected the ULP procedure.

      As to the second requirement, the Arbitrator found that both the ULP charge and the grievance were filed on the same day. The Arbitrator found that "the Union representative denied on the ULP form that he `raised this matter in any other procedure[.]'" Id. at 19. However, the Arbitrator explained that the Union official's denial would be "ostensibly valid if he perceived the theories and subject matter to be different at the time the ULP [charge] and grievance were filed[.]" Id. The Arbitrator declined to "assume" that the ULP charge was filed first "absent probative evidence as to the sequence of the filings[.]" Id. at 18. Finding no probative evidence that the ULP charge was filed first, the Arbitrator concluded that the grievance was not barred by § 7116(d) of the Statute and, therefore, was arbitrable.

      Turning to the merits, the Arbitrator found that the Agency violated the parties' agreement as alleged in the grievance. He ordered the Agency to restore the schedules to the status quo and to pay backpay to any employees who lost pay as a result of the violation.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency asserts that the Arbitrator based his arbitrability finding on the nonfact that the Union official perceived the subject matter of the ULP charge and the grievance to be different at the time he filed the ULP charge. According to the Agency, this finding is not [ v62 p55 ] supported by the record because, as the Arbitrator acknowledged, the Union official's "mindset . . . when he filed the ULP was not addressed" at the hearing. Exceptions at 18 (quoting Award at 15). According to the Agency, this nonfact was a central fact underlying the award, but for which the Arbitrator would have reached a different conclusion.

      The Agency also claims the award is contrary to law because, as relevant here, it violates § 7116(d) of the Statute. In this regard, the Agency asserts that, by declaring on the ULP charge form "that he did not raise this matter in any other procedure," the Union official asserted that the matter was not earlier-raised in the grievance procedure. Id. at 13. As such, the Agency asserts that the Authority "must conclude that the ULP charge was filed" first. Id. at 14.

B.      Union's Opposition

      According to the Union, the award is not based on a nonfact because the issue of whether the ULP charge was filed before the grievance was disputed below. Opposition at 14. Also, according to the Union, the award is not contrary to law because "[n]othing presented at the hearing indicates that the ULP was filed earlier than the grievance." Id. at 11. In this regard, the Union asserts that the ULP charge and the grievance were filed simultaneously and that nothing in the Statute "would indicate [that] a simultaneously filed ULP would [bar] a grievance." Id. at 12.

IV.      Analysis and Conclusions

A.      The Award Is Not Based On a Nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id.

      The Agency claims that the award is based on a nonfact because the Arbitrator incorrectly found that the Union official perceived the subject matter of the ULP charge and the grievance to be different at the time he filed the ULP charge. However, the Arbitrator made no factual finding about the Union official's perception at the time of the filing. The Arbitrator found that the Union official's statement on the ULP charge form would be valid "if he perceived the theories and subject matter to be different" when he filed the ULP charge, not because he perceived them to be different. Award at 19 (emphasis added). Consequently, we conclude that the award is not based on a nonfact.

B.      The Award Is Contrary To Law

      The Authority reviews questions of law raised by exceptions to an arbitrator's 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 a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In doing so, the Authority defers to the arbitrator's underlying factual findings. See id.

      In order for a grievance to be precluded under § 7116(d) by an earlier-filed ULP charge: (1) the issue that is the subject matter of the grievance must be the same as the issue that is the subject matter of the ULP charge; (2) such issue must have been earlier raised under the ULP procedure; and (3) the selection of the ULP procedure must have been in the discretion of the aggrieved party. See United States Dep't of the Army, Norfolk Dist., Army Corps of Eng'rs, Norfolk, Va., 59 FLRA 906, 909 (2004) (citing United States Dep't of Health & Human Servs., Soc. Sec. Admin., Office of Hearings & Appeals, Region II, 36 FLRA 448, 451 (1990)). The Agency disputes the Arbitrator's finding, with respect to the second requirement, that it did not establish that the ULP charge was filed before the grievance. For reasons different than those asserted by the Agency, we find that the Arbitrator erred as to the second requirement.

      The Arbitrator found, as matters of fact, which are undisputed, that the ULP charge and the grievance were filed on the same day and that the Union "denied on the ULP form that [it] `raised this matter in any other procedure[.]'" Award at 19. However, contrary to the Agency's claim, the Union official's assertion does not require a conclusion that the ULP charge was filed first. In this regard, as the Arbitrator pointed out, the Union official's assertion leaves open the possibility that the grievance was filed first if the Union official's assertion was based on the belief that the issues raised in the earlier-filed grievance were different than those being raised in the ULP charge. The Union claims that this is the case. See Opposition at 11. Thus, the Union official's statement on the ULP charge form, standing alone, does not resolve the issue of which filing was first.

      Nevertheless, even assuming the Union's filings were simultaneous, this would not establish that the [ v62 p56 ] grievance was proper under § 7116(d). In this connection, § 7116(d) provides that "issues which can be raised under a grievance procedure may . . . be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures." As such, the plain wording of § 7116(d) requires the Union to make an election between the ULP procedure and the grievance procedure. See, e.g., Headquarters, Space Div., L.A. Air Force Station, Cal., 17 FLRA 969, 971 (1985) (interpreting § 7116(d) as requiring an "election of procedures"). The Statute makes no exception to the election requirement for simultaneous filings. Thus, the award is inconsistent with § 7116(d) unless the grievance was filed before the ULP charge. It is undisputed that there has been no finding that the grievance was filed first. Indeed, the Union has never claimed that the grievance was filed first. Rather, the Union has consistently maintained -- both in arbitration and before the Authority -- that the ULP charge and the grievance were filed "simultaneously." Id. at 19 and Opposition at 7. As there is no claim or arbitral finding that the grievance was filed before the ULP charge, and as there is no dispute that the other two requirements of § 7116(d) were satisfied, the award is deficient.

      Based on the foregoing, we conclude that the Union's grievance over the Agency's alleged unilateral change in work schedules is barred by § 7116(d) of the Statute. As the award reflects, the Union withdrew its ULP charge over the same issue. Consequently, the Union has exhausted its options to pursue this claim in either of the procedures provided for in § 7116(d) of the Statute.

V.     Decision

      The award is set aside.



Footnote * for 62 FLRA No. 15 - Authority's Decision

   Section 7116(d) of the Statute provides that:

Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures. </