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

64 FLRA No. 177                            













June 24, 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 Luella E. Nelson 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 Agency violated its own regulations by decertifying the grievant from his radar-controller position following an air-traffic incident.  For the following reasons, we deny the exceptions. 

II.                Background and Arbitrator’s Award

            While working as a radar-controller, the grievant directed two aircraft separated by fewer than five miles onto a collision course.  Award at 6.  An automated system directed the aircraft to take immediate evasive action, thus avoiding a collision.  Id.        at 6-7.    

Following the incident, the Agency decertified the grievant from his position and ordered him to undergo remedial training.  Id. at 8.  The Union filed a grievance (the decertification grievance) seeking expungement of the decertification and make-whole relief or “[a]ny other remedy deemed appropriate.”  Id at 9.  Several months later, the Union filed a second grievance (the pay-incentive grievance) seeking backpay and make-whole relief for the grievant’s loss of consideration for an Operational Success Increase (OSI) or Superior Success Increase (SCI).  Id.  The Agency disputed the timeliness of the pay-incentive grievance and denied it on its merits, and the Union did not advance that grievance to arbitration.  Id.  The decertification grievance was not resolved and submitted to arbitration.


            At arbitration, the parties stipulated to the following issue:  “Was the decertification of [the grievant] in compliance with [Agency] regulations; and, if not, what shall be the remedy?”  Id. at 2.  The Arbitrator found that, prior to the incident, the grievant had no history of performance issues and received numerous commendations for his work.  Id. at 9.  The Arbitrator also found that the Agency violated its own regulations by decertifying the grievant without any prior history of performance problems.[1]  Id. at 17.  Given the grievant’s previously unblemished record, she determined that, but for his improper decertification, the grievant would have received an OSI or SCI.  Id. at 18.  The Arbitrator directed the Agency to:  expunge the decertification from all records; denominate his remedial training as skill-enhancement training; and award the OSI/SCI that the grievant would have received but for his improper decertification, with interest.  Id. at 19.

III.             Positions of the Parties

A.                Agency’s Exceptions

The Agency argues that the award is contrary to law on two grounds.  First, the Agency asserts that the award violates the Back Pay Act by compensating the grievant for the loss of a potential benefit, rather than an actual loss.  Exceptions at 6-7.  According to the Agency, the grievant was not automatically entitled to an OSI or SCI, and likely would not have received either increase due to his documented error.  Id.  Second, the Agency contends that the award mandates payment of a performance award in violation of 5 U.S.C. § 4505a(a)(1) and its implementing regulation, 5 C.F.R. § 451.104(a)(3), which grant agencies discretion to decide whether to grant performance awards.[2]  Id. at 8. 

The Agency also argues that the award fails to draw its essence from the parties’ agreement, which requires arbitrators to confine themselves to issues submitted for arbitration.  Id. at 6.  Finally, the Agency asserts that the Arbitrator exceeded her authority by considering the claimant’s loss of an OSI/SCI because this issue was not raised in the decertification grievance.  Id. at 4-5.  In this connection, the Agency contends that because the pay-incentive grievance was untimely and not advanced to arbitration, the grievant forfeited his right to monetary relief in the form of an OSI/SCI.  Id.

B.                 Union’s Opposition

            With respect to the Agency’s contrary-to-law exception, the Union asserts that the Agency cites no law, rule or regulation to support its argument.  Opp’n at 6.  The Union also argues that the Arbitrator did not exceed her authority by awarding compensation for the grievant’s loss of an OSI/SCI because the parties stipulated to the issue of remedy.  Id. at 7-10.  Finally, the Union contends that the Agency has not demonstrated that the award fails to draw its essence from the agreement.  Id. at 10-11.

IV.             Discussion

A.                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 U.S. 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 U.S. Dep’t of Def., Dep’ts of the Army & the Air Force, Ala. Nat’l Guard, Northport, Ala., 55 FLRA 37, 40 (1998).  In making that assessment, the Authority defers to the arbitrator’s underlying factual findings.  See id. 

                                                1.      Back Pay Act

Under the Back Pay Act, 5 U.S.C. § 5596, an award of backpay 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 directly resulted in the withdrawal or reduction of the grievant’s pay, allowances or differentials.  See AFGE, Local 48, 56 FLRA 1082, 1083 (2001). 

With regard to the first requirement, a violation of a governing agency regulation constitutes an “unjustified or unwarranted personnel action” within the meaning of the Back Pay Act.  U.S. Dep’t of Transp., Fed. Aviation Admin., Airways Facility Serv., Nat'l Airway Sys., Eng’g Div., Okla. City, Okla., 60 FLRA 565, 569 (2005).  The Arbitrator found, and the Agency does not dispute, that the Agency violated an Agency regulation.  Thus, the first Back Pay Act requirement is satisfied.

            With regard to the second requirement, the Authority has also held that “it will not look behind an arbitrator’s award in cases where the requisite ‘but for’ finding is made” and is supported by other factual findings.   See U.S. Dep’t of Health & Human Servs., 54 FLRA 1210, 1219 n.9 (1998) (citing U.S. Dep’t of Commerce, Patent & Trademark Office, 52 FLRA 358, 369 (1996)).  Here, the Arbitrator specifically found that the grievant would have received an OSI/SCI for the relevant year “but for his improper decertification.”  Award at 18.   For support, she cited her factual finding that the grievant had a very positive performance record and received several commendations prior to the decertification.  Id.  The Agency does not dispute the Arbitrator’s finding regarding the grievant’s performance record or provide any other basis for finding that the Arbitrator erred in her “but for” determination. [3]  The Arbitrator’s factual findings support her conclusion that the violation of the Agency regulation directly resulted in the grievant’s failure to receive an OSI/SCI.  Thus, the second Back Pay Act requirement is satisfied, and there is no basis for finding the award contrary to the Back Pay Act.

             Accordingly, we deny the exception. 

                                                2.      U.S.C. § 4505a(a)(1) and 5 C.F.R. § 451.104(a)(3)

            Under 5 U.S.C. § 4505a(a)(1) and 5 C.F.R. § 451.104(a)(3), an agency has discretion to grant performance awards to employees who perform at a “fully successful level[.]”  Here, the Arbitrator effectively found that, absent the violation of Agency regulations, the Agency would have exercised this discretion and granted the grievant an OSI/SCI.  The Agency provides no basis for reaching a contrary conclusion.  Thus, there is no basis for finding the award contrary to U.S.C. § 4505a(a)(1) and 5 C.F.R. § 451.104(a)(3).  Accordingly, we deny the exception.