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

[ v62 p526 ]

62 FLRA No. 99

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
AFL-CIO
(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
(Agency)

0-AR-4069

_____

DECISION

July 14, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Joseph M. Sharnoff filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.

      The Arbitrator concluded that the Agency did not violate the Statute or any agreements when it terminated a memorandum of understanding (MOU). For the reasons that follow, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      In December 2004, the Agency notified the Union of its intent to terminate an MOU concerning permanent changes of station (PCS) on its February 10, 2005 expiration date. [n2]  In response, the Union asserted the right to negotiate the impact and implementation of any changes in the payment of PCS expenses and requested a briefing by the Agency on its decision to terminate the MOU. The Union also asserted that the MOU required negotiation of a successor agreement and that the terms of the MOU controlled until a new agreement was reached.

      In January, the Agency briefed the Union on why it proposed to terminate the MOU and specified provisions of the MOU that the Agency viewed as unenforceable because they were contrary to law. The Agency advised the Union that the remaining provisions of the MOU, which were not unenforceable, would terminate on the expiration date unless the Union submitted bargaining proposals. In a letter dated February 2, the Union maintained that a briefing was still required to provide it with sufficient information to draft bargaining proposals, but "[i]n an effort to facilitate any briefing or negotiation, [the Union] submit[ted] as its initial proposal a request to maintain the status quo." Award at 9. The Union also disagreed with the Agency's position that the specified provisions were contrary to law.

      The Agency did not terminate the MOU on its expiration date of February 10. Instead, on April 13, the Agency met with the Union to conduct a briefing concerning the immediate termination of the MOU provisions it viewed to be contrary to law and its intent to terminate the MOU in full. In a letter dated May 20, the Agency exercised "its contractual right to not renew the MOU and to terminate it effective the date of this letter." Id. The Agency explained that the letter was a follow up to the April briefing and the Union's proposal of February 2. The Agency asserted that because the Union's proposal basically restated the MOU, it was not responsive to the Agency's notice of its intent not to renew the MOU.

      On June 10, the Union filed an unfair labor practice (ULP) charge with the Authority's Office of General Counsel (OGC). In the charge, the Union asserted that it had requested briefings and on February 2 had submitted a bargaining proposal without the benefit of a briefing. According to the Union, despite the requested negotiations, the Agency unilaterally terminated the PCS MOU without negotiating with the Union. The Union alleged that by this conduct, the Agency violated the Statute. [n3]  On July 28, the Union filed a grievance, which was submitted to arbitration.

      Before the Arbitrator, the Union alleged that the Agency had violated the PCS MOU, the parties' collective bargaining agreement, and the Statute by refusing to comply with its obligations to notify the Union and provide it with a briefing and an opportunity to bargain. The Agency asserted that the Union was barred from [ v62 p527 ] raising issues at arbitration that the Union had raised as a ULP. In addition, the Agency claimed that it had met its obligations by notifying the Union of its intent to terminate the PCS MOU and by soliciting proposals on the impact and implementation of the termination. The Agency claimed that it was free to terminate the remaining provisions of the MOU, which were not illegal, when the Union failed to submit any proposals addressing impact and implementation.

      The Arbitrator concluded that the Union failed to demonstrate that the Agency violated the PCS MOU, the parties' collective bargaining agreement, or the Statute. In this regard, the Arbitrator first rejected the Union's interpretation of the PCS MOU to require the negotiation of a successor agreement. With respect to the Union's allegation that the Agency had violated the Statute, the Arbitrator concluded that the following claim of the Union was barred:

To the extent that the Union claims that the Agency refused to bargain after the April 13th meeting because it terminated the MOU in its entirety instead of presenting a counter-proposal to the Union's suggested responses, at the April 13th meeting, to Management's claimed problems with several provisions in the MOU, the Union is seeking to litigate in this proceeding the identical issues that it sought to present to the FLRA in the ULP charge.

Id. at 23.

      In addition, he concluded that the Agency's actions were consistent with the parties' collective bargaining agreement. He found that the Agency met its obligations when it provided the Union with the briefing on April 13 and when it offered to negotiate on the impact and implementation of the termination of the MOU. He agreed with the Agency that the Union's February proposal to maintain the status quo did not pertain to impact and implementation.

      Accordingly, the Arbitrator denied the grievance.

III.      Union's Exceptions

      The Union contends that the award is deficient because it is based on a nonfact and because it fails to conform to the Statute. In contending that the award is based on a nonfact, the Union claims that the Arbitrator erroneously found that the Agency satisfied its bargaining obligation on the basis that the Union failed to submit any proposals after the April briefing. The Union asserts that the result of the April briefing was that the Agency promised to submit a counter-proposal to the Union and that the Union was not obligated to submit any proposals. The Union argues that in considering the results of the April briefing, the Arbitrator "did not consider the true course of events" and that, consequently, the award is based on a nonfact. Exceptions at 4.

      In contending that the award fails to conform to the Statute, the Union claims that the award is contrary to Authority precedent. The Union maintains that consistent with Authority precedent, it requested to bargain immediately when informed of the Agency's intention to change the terms of the MOU and on February 2 submitted the only proposal that it could in view of the uncertainty about the Agency's actions prior to the April 13 briefing, which was a proposal to maintain the status quo. The Union claims that its proposal was a good-faith effort to initiate impact and implementation bargaining when the Agency's actions lacked clarity. The Union asserts that the Arbitrator's denial of the grievance on the basis that it failed to submit a proposal on impact and implementation is not consistent with Authority precedent.

IV.      Analysis and Conclusions

A.      The award is not based on a nonfact.

      To establish that the award is based on a nonfact, the Union must show that a central fact underlying the award is clearly erroneous, but for which the Arbitrator would have reached a different result. E.g., United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient as based on a nonfact on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. At 594.

      The Union argues that the Arbitrator did not properly consider that, as a result of the April briefing, the Agency promised to offer a counter-proposal and the Union was not obligated to offer any proposals. However, the parties clearly disputed before the Arbitrator the results of the April 13 briefing. Consequently, the Union has failed to establish that the award is based on a nonfact. E.g., United States Dep't of the Treasury, Internal Revenue Serv., Kansas City Field Compliance Serv., 60 FLRA 401, 402 (2004).

      Accordingly, we deny this exception.

B.     The award is not contrary to the Statute.

      When an exception involves the award's consistency with law, we review de novo any question of law raised by the exception and the award. E.g., [ v62 p528 ] NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. E.g., NFFE Local 1437, 53 FLRA 1703, 1710 (1998). The Union asserts that the Arbitrator's denial of the grievance on the basis that it failed to submit a proposal on impact and implementation is inconsistent with Authority precedent.

      To the extent that the Union asserts that the award is deficient under Authority precedent because the Arbitrator failed to conclude that the Agency violated the Statute, the Union has misconstrued the award. The Arbitrator did not deny the alleged violation of the Statute on the basis that the Union failed to submit a proposal on impact and implementation. Instead, the Arbitrator concluded that the Agency did not violate the Statute because the Union's statutory claims were barred as a result of the earlier-filed ULP. [n4]  The Union does not address this portion of the Arbitrator's award and does not dispute that the Arbitrator properly limited his award to matters not raised in the Union's ULP charge. Consequently, the Union has failed to establish that the award is deficient with respect to the Arbitrator's denial of the Union's statutory claims.

      To the extent that the Union asserts that the award is deficient under Authority precedent because the Arbitrator failed to conclude that the Agency violated the MOU or the parties' collective bargaining agreement, the Union has again failed to establish that the award is deficient. Under Authority precedent, parties are permitted to define through negotiations their bargaining obligations. E.g., Ass'n of Civilian Technicians, N.Y. State Council, 60 FLRA 890, 892 (2005), petition for review dismissed for lack of jurisdiction, 507 F.3d 697 (D.C. Cir. 2007). Unless the contract provision is unenforceable, "[o]nce the parties have defined their bargaining obligations through an agreement, the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the [a]rbitrator." Id. (quoting AFGE Local 3529, 52 FLRA 1313, 1319 (1997)).

      Because the Union does not contend that any provisions of the MOU or the collective bargaining agreement are unenforceable and does not dispute that the Arbitrator properly limited his award to the MOU and the collective bargaining agreement, this matter was limited to contract interpretation. In this respect, the Union does not contend that the Arbitrator's contractual interpretation of the MOU and the collective bargaining agreement is deficient on essence grounds. Consequently, the Union's exception provides no basis on which to find the award deficient. See id.

      Accordingly, we deny this exception.

V.      Decision

      The Union's exceptions are denied.


Separate Opinion of Chairman Cabaniss:

      I agree that the Arbitrator appropriately found that the Agency did not violate the Statute and in this regard the Union's Exceptions are properly denied. I would find, however, that the Union's actions here implicate 5 U.S.C. § 7116(d) and that we should reexamine how we address grievances that raise matters that have been addressed in previously-filed ULP charges. While the Union arguably characterized the grievance as a distinct issue, in real terms, the underlying matter was the same. See Dep't of Labor, 59 FLRA 112 (2003).



Footnote # 1 for 62 FLRA No. 99 - Authority's Decision

   The separate opinion of Chairman Cabaniss is set forth at the end of this decision.


Footnote # 2 for 62 FLRA No. 99 - Authority's Decision