United States Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association, AFL-CIO (Union)
64 FLRA No. 110
FEDERAL LABOR RELATIONS AUTHORITY
UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
March 29, 2010
Before the Authority: Carol Waller Pope, Chairman, and
Thomas M. Beck and Ernest DuBester, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Elizabeth Neumeier 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 grievance was arbitrable and that the grievant’s five-day suspension was not supported. She set aside the suspension and also directed the Agency to reinstate the grievant’s duties involving community outreach, controller in charge, and on-the-job-training instruction (the disputed duties). For the reasons that follow, we deny the Agency’s exception as to arbitrability, but conclude that the Arbitrator exceeded her authority in directing reinstatement of the disputed duties.
II. Background and Arbitrator’s Award
The grievant was suspended for five days for inappropriate behavior and for failure to follow the instructions of her supervisor. The Union filed a grievance on the grievant’s behalf contesting the suspension. Award at 2. The grievance stated that it was filed under the parties’ 2003 collective bargaining agreement (2003 agreement). Id. The Agency denied the grievance on the basis that it was procedurally defective. Specifically, the Agency alleged that a new collective bargaining agreement became effective in 2006 (2006 agreement) and that the grievance should have been filed under that agreement rather than the 2003 agreement. The matter was not resolved and was submitted to arbitration on the following stipulated issues:
1. Is the subject grievance, the five-day suspension of the Grievant for inappropriate behavior and failure to follow supervisory instruction . . . properly before the arbitrator?
2. Was the five-day suspension of the Grievant for inappropriate behavior . . . and failure to follow supervisory instruction made for the efficiency of the service?
Before the Arbitrator, the Agency reiterated its argument that the grievance was procedurally defective because it failed to cite the 2006 agreement. Id. at 5. The Union asserted that, even if it cited the wrong agreement, the grievance was not defective because neither the 2003 agreement nor the 2006 agreement requires that a grievance must correctly cite the applicable agreement. In addition, the Union noted that the substantive provisions relating to the imposition of discipline are the same in both agreements. Id.
In assessing the arbitrability of the grievance, the Arbitrator found that the complaint over the suspension is a grievance covered by the grievance procedure of either agreement. In addition, the Arbitrator found that there is no material difference between the two agreements with respect to the substantive provisions relating to the imposition of discipline. She concluded that there was a “meeting of the minds” as to the grievance being covered under a grievance procedure and as to the substantive provisions governing resolution of the grievance. Id. at 7. For these reasons, she determined that the grievance was arbitrable and that it was unnecessary to resolve the parties’ dispute over which agreement governed the dispute. Id.
On the merits, the Arbitrator found that the Agency failed to support either charge that provided the basis for the suspension. Accordingly, she directed that the suspension be removed from Agency records and that the grievant be made whole for lost pay. In addition, she stated: “[A]s no justification was presented for removing the grievant from her positions involving [the disputed] duties, those shall also be reinstated.” Id. at 20.
III. Positions of the Parties
A. Agency’s Exceptions
The Agency contends that the Arbitrator exceeded her authority with respect to her arbitrability determination. In this regard, the Agency asserts that the Arbitrator lacked authority to resolve the grievance because it was procedurally deficient as an attempt to enforce terms of the expired 2003 agreement. Exceptions at 5. The Agency also asserts that the Arbitrator created “her own fictional arbitration clause[.]” Id.
With respect to the Arbitrator’s resolution of the merits, the Agency contends that the Arbitrator exceeded her authority by directing reinstatement of the disputed duties, as these matters were not encompassed within the stipulated merits issue. Id. at 19. In addition, the Agency asserts that the directed reinstatement of the disputed duties impermissibly affects management’s right to assign work pursuant to § 7106(a)(2)(B) of the Statute. Id. at 27.
B. Union’s Opposition
As to the Arbitrator’s arbitrability determination, the Union contends that it is a determination of procedural arbitrability that is not subject to challenge. Opp’n at 5. As to the Arbitrator’s resolution of the merits, the Union contends that the Arbitrator’s direction to reinstate the disputed duties was encompassed within her discretion to fashion a remedy and make the grievant whole for any harm that resulted from the unwarranted suspension. Id. at 16. In addition, the Union contends that the award is not contrary to management’s rights. Id. at 18-19.
IV. Analysis and Conclusions
A. The Arbitrator’s arbitrability determination is not deficient.
As recognized by the Authority, procedural arbitrability involves questions of whether the procedural conditions to arbitrability have been met or excused, while substantive arbitrability involves questions of whether the subject matter of a dispute is arbitrable. See, e.g., AFGE Nat’l Border Patrol Council, Local 1929, 63 FLRA 465, 467 (2009). Here, the Arbitrator found, and the Agency does not dispute, that both the 2003 and 2006 agreements cover the subject matter that was grieved and set forth the same substantive standards with respect to the imposition of discipline. Consequently, the exceptions do not challenge a substantive arbitrability determination. Instead, the exceptions challenge the Arbitrator’s arbitrability determination rejecting the Agency’s claim that the reference to the 2003 agreement rendered the grievance procedurally defective. This is a procedural arbitrability determination because it finds that the grievance met the procedural conditions to resolution on the merits. See id.
As a procedural arbitrability determination, the Arbitrator’s determination is generally not subject to challenge. E.g., AFGE Local 104, 61 FLRA 681, 682 (2006); see also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964) (“Once it is determined . . . that the parties are obligated 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.”). One of the grounds on which a procedural arbitrability determination is subject to challenge is exceeded authority, but only insofar as the exceeded-authority claim “do[es] not directly challenge the [arbitrability] determination itself.” AFGE Local 104, 61 FLRA at 683. Here, the parties specifically authorized the Arbitrator to determine whether the grievance was arbitrable, and the Agency makes no exceeded-authority arguments that do not directly challenge the Arbitrator’s arbitrability determination itself. Consequently, the Agency provides no basis for finding the determination deficient. See id.
Accordingly, we deny the Agency’s exception.
B. The Arbitrator exceeded her authority in directing reinstatement of the disputed duties.
As relevant her