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62 FLRA No. 15
United States Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association, AFL-CIO (Simmelkjaer, Arbitrator), 0-AR-4141 (March 23, 2007)
The Arbitrator sustained a grievance alleging that the Agency unilaterally changed watch schedules. As a preliminary matter, the Arbitrator determined that the grievance was not barred under § 7116(d) of the Statute by a ULP charge filed the same day as the grievance. The Agency excepted to the award contending that the arbitrability determination was based on a nonfact and that it was contrary to law.
The Authority found that the award was not based on a nonfact as alleged by the Agency, but that the award was contrary to law and therefore set the award aside. In finding that the award was contrary to law, the Authority assumed, as was contended by the Union, that the grievance and the ULP were filed simultaneously. The Authority stated that the Statute makes no exception to the election requirement for simultaneous filings, and that the award is inconsistent with § 7116(d) unless the grievance was filed before the ULP. Since there was no finding that the grievance was filed before the ULP, the Authority held that the award was contrary to law.