Department of the Air Force, Civilian Personnel Branch, Carswell Air Force Base, Texas (Activity) and American Federation of Government Employees, Local 1364 (Union)

 5 FLRA No. 7
 
 DEPARTMENT OF THE AIR
 FORCE, CIVILIAN PERSONNEL
 BRANCH, CARSWELL AIR
 FORCE BASE, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1364
 Union
 
                                            Case No. 0-AR-40
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR JACK JOHANNES FILED BY THE UNION UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE ACTIVITY DENIED THE GRIEVANT'S REQUEST TO REMAIN ON THE NIGHT
 SHIFT RATHER THAN BEING ROTATED TO THE DAY SHIFT.  A GRIEVANCE WAS FILED
 WHICH ALLEGED THAT MANAGEMENT'S FAILURE TO ALLOW THE GRIEVANT TO REMAIN
 ON THE NIGHT SHIFT WAS A VIOLATION OF THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT.  THE PARTIES WERE UNABLE TO RESOLVE THE DISPUTE AND IT WAS
 ULTIMATELY SUBMITTED TO ARBITRATION.  HOWEVER, PRIOR TO THE ARBITRATION
 HEARING THE GRIEVANT WAS TRANSFERRED TO ANOTHER WORK UNIT IN THE
 ACTIVITY.  SUBSEQUENT TO THE TRANSFER, THE GRIEVANT WAS GIVEN THE
 OPPORTUNITY TO RETURN TO THE NIGHT SHIFT.  HE DECLINED THE OFFER AND
 REMAINED ON THE DAY SHIFT.
 
    IN ITS STATEMENT OF ISSUES PRESENTED TO THE ARBITRATOR AT THE
 HEARING, THE ACTIVITY CLAIMED THAT THERE WAS NO LONGER ANY ISSUE TO BE
 RESOLVED.  THE ACTIVITY MAINTAINED THAT THE GRIEVANCE WAS MOOT BECAUSE
 SUBSEQUENT TO FILING HIS GRIEVANCE, THE GRIEVANT WAS GRANTED AN
 OPPORTUNITY TO RETURN TO THE NIGHT SHIFT AS HE HAD REQUESTED, BUT HE
 DECLINED TO DO SO.  IN RESPONSE TO THIS CLAIM, THE ARBITRATOR QUESTIONED
 WHETHER AN AWARD IN FAVOR OF THE GRIEVANT COULD ACCOMPLISH ANY PRACTICAL
 RELIEF.  HE FOUND THAT BECAUSE THE GRIEVANT HAD DECLINED TO RETURN TO
 WORK ON THE NIGHT SHIFT, THERE COULD BE NO AWARD.  ACCORDINGLY, THE
 ARBITRATOR RULED:
 
    (S)INCE THE GRIEVANT HAS STATED THAT HE DOES NOT WISH TO RETURN TO
 HIS FORMER SHIFT THIS
 
    GRIEVANCE THEREFORE HAS BECOME MOOT AND WILL NOT BE ACTED UPON.
 
    ALTHOUGH HE RULED THAT THIS GRIEVANCE COULD NOT BE ACTED UPON, THE
 ARBITRATOR IN RECOGNITION OF THE DISPUTE BETWEEN THE PARTIES ADDED:
 
    THE MANAGEMENT AND UNION SHALL CONFER IN AN ATTEMPT TO CLARIFY THE
 RIGHTS OF SENIOR WORKERS
 
    TO PREFERENCE OF SHIFTS SO THAT NO MISUNDERSTANDINGS WILL ARISE IN
 THE FUTURE REGARDING SHIFT
 
    CHANGES.
 
    THE UNION HAS FILED TWO EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER
 SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
 CFR PART 2425.  /2/ THE AGENCY DID NOT FILE AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR IS DEFICIENT ON OTHER
 GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ONE OF ITS EXCEPTIONS TO THE AWARD, THE UNION CONTENDS THAT, IN
 FINDING THE GRIEVANCE MOOT AND RULING THAT IT WOULD NOT BE ACTED UPON,
 THE ARBITRATOR FAILED TO RESOLVE THE ISSUE SUBMITTED.  IN SUPPORT OF
 THIS EXCEPTION, THE UNION ARGUES THAT THE AWARD LACKS ENTIRETY AND
 COMPLETENESS BECAUSE BY FINDING THE GRIEVANCE MOOT, THE ARBITRATOR
 FAILED TO ANSWER THE QUESTION OF WHETHER THE ACTIVITY VIOLATED THE
 COLLECTIVE BARGAINING AGREEMENT.
 
    THE SUBSTANCE OF THE UNION'S EXCEPTION AND THE ASSERTIONS IN SUPPORT
 OF THAT EXCEPTION APPEAR TO BE THAT THE ARBITRATOR SOMEHOW EXCEEDED HIS
 AUTHORITY BY FIRST ADDRESSING THE QUESTION OF WHETHER, IN THE
 CIRCUMSTANCES OF THIS CASE, THE GRIEVANCE WAS MOOT AND BY THEREAFTER NOT
 RESOLVING THE QUESTION OF WHETHER THERE HAD BEEN A VIOLATION OF THE
 COLLECTIVE BARGAINING AGREEMENT.  THE AUTHORITY WILL FIND AN ARBITRATION
 AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE WHEN THE
 ARBITRATOR HAS EXCEEDED HIS OR HER AUTHORITY.  FOR EXAMPLE, THE
 AUTHORITY WILL FIND AN AWARD DEFICIENT WHEN AN ARBITRATOR EXCEEDS HIS OR
 HER AUTHORITY BY RENDERING AN AWARD IN DISREGARD OF A PLAIN AND SPECIFIC
 LIMITATION ON THAT AUTHORITY.  DEPARTMENT OF THE AIR FORCE, MCGUIRE AIR
 FORCE BASE AND LOCAL 1778, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 3 FLRA NO. 38(1980).  LIKEWISE, THE AUTHORITY WILL FIND AN AWARD
 DEFICIENT WHEN THE ARBITRATOR EXCEEDS HIS OR HER AUTHORITY BY
 DETERMINING AN ISSUE NOT INCLUDED IN THE SUBJECT MATTER SUBMITTED TO
 ARBITRATION.  FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION,
 LOCAL NO. 291, FORT WORTH, TEXAS AND FEDERAL AVIATION ADMINISTRATION,
 FORT WORTH AIR ROUTE TRAFFIC CONTROL CENTER, AIRWAY FACILITIES SECTOR,
 SOUTHWEST REGION, FORT WORTH, TEXAS, 3 FLRA NO. 88(1980).  IN THIS CASE,
 HOWEVER, THE UNION HAS NOT DEMONSTRATED IN WHAT MANNER THE ARBITRATOR'S
 AWARD IS DEFICIENT AS IN EXCESS OF HIS AUTHORITY.  THE UNION HAS NOT
 SHOWN THAT BY FIRST ADDRESSING THE PRELIMINARY QUESTION OF MOOTNESS THE
 ARBITRATOR DETERMINED AN ISSUE NOT SUBMITTED, DISREGARDED A SPECIFIC
 LIMITATION ON HIS AUTHORITY, OR IN ANY OTHER MANNER EXCEEDED HIS
 AUTHORITY.  AS WAS NOTED, THE ARBITRATOR SPECIFICALLY DETERMINED THAT
 THE GRIEVANCE WOULD NOT BE ACTED UPON BECAUSE IT WAS MOOT.  THIS
 DETERMINATION WAS IN DIRECT RESPONSE TO THE ACTIVITY'S STATEMENT OF
 ISSUES WHICH INCLUDED THE QUESTION OF MOOTNESS AND, IN THE JUDGMENT OF
 THE ARBITRATOR, IT DISPOSED OF THE MATTER BEFORE HIM.
 
    AS TO THE UNION'S FURTHER ASSERTIONS IN SUPPORT OF ITS EXCEPTION,
 THAT THE AWARD IS INCOMPLETE BECAUSE THE ARBITRATOR DID NOT RESOLVE THE
 CONTRACT ISSUE, THESE ASSERTIONS NEITHER SUPPORT THE UNION'S EXCEPTION
 THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY NOR PROVIDE ANY OTHER BASIS
 FOR FINDING THE AWARD DEFICIENT UNDER THE STATUTE.  IN THIS REGARD, AS
 HAS BEEN NOTED, THE ARBITRATOR DETERMINED AS A PRELIMINARY MATTER THAT,
 IN THE PARTICULAR FACTUAL CIRCUMSTANCES OF THIS CASE, THE GRIEVANCE WAS
 MOOT AND THERE COULD BE NO AWARD WITH RESPECT TO THE INDIVIDUAL
 GRIEVANT.  HOWEVER, IN RECOGNITION OF THE OVERALL DISPUTE BETWEEN THE
 PARTIES, THE ARBITRATOR ORDERED THAT THE PARTIES CONFER TO CLARIFY THE
 SHIFT PREFERENCE MATTER IN ORDER TO AVOID FUTURE MISUNDERSTANDINGS.
 INSOFAR AS THE UNION ASSERTS THAT THE AWARD IS DEFICIENT BECAUSE THE
 GRIEVANCE WAS NOT MOOT, THIS ASSERTION CONSTITUTES DISAGREEMENT WITH THE
 ARBITRATOR'S FINDINGS OF FACT THAT THE GRIEVANCE WAS MOOT AND HIS
 REASONING AND CONCLUSION THAT ACCORDINGLY THERE COULD BE NO AWARD IN
 THIS CASE.  SUCH ASSERTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER THE STATUTE.  SEE DEPARTMENT OF DEFENSE DEPENDENTS
 SCHOOLS AND OVERSEAS EDUCATION ASSOCIATION, INC., 3 FLRA NO. 129(1980).
 CONSEQUENTLY, THIS EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES.
 
    IN ITS OTHER EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THERE
 WAS "MISCONDUCT" BY THE ACTIVITY IN THIS CASE THAT CONSTITUTED A FATAL
 DEFECT IN THE ARBITRATION HEARING.  IN SUPPORT OF THIS EXCEPTION, THE
 UNION CITES CERTAIN "TACTICS" USED BY MANAGEMENT IN THIS CASE AND
 CERTAIN ALLEGED ACTIONS BY THE ACTIVITY IN THE PRESENTATION OF THIS CASE
 TO THE ARBITRATOR AS EXAMPLES OF THIS MISCONDUCT.  THE UNION FURTHER
 MAINTAINS THAT MANAGEMENT'S TACTICS "ARE CLOSE TO, IF NOT, PROHIBITED
 PERSONNEL PRACTICES." THE UNION ALSO STATES THAT AS A RESULT OF THIS
 CASE AS IT WAS PRESENTED TO THE ARBITRATOR, IT HAS CHARGED MANAGEMENT
 WITH "SEVERAL ALLEGED UNFAIR LABOR PRACTICES."
 
    WITHOUT DECIDING WHETHER OR TO WHAT EXTENT CERTAIN ACTIONS BY ONE OF
 THE PARTIES TO ARBITRATION MAY PROVIDE A BASIS FOR THE AUTHORITY TO FIND
 AN ARBITRATION AWARD DEFICIENT UNDER THE STATUTE, THE UNION'S EXCEPTION
 AND ITS ASSERTIONS IN SUPPORT OF THAT EXCEPTION PROVIDE NO BASIS FOR
 FINDING THIS AWARD DEFICIENT.  THE UNION PROVIDES NO EXPLANATION OF HOW
 MANAGEMENT "TACTICS" WHICH ARE ASSERTED TO BE "CLOSE TO, IF NOT,
 PROHIBITED PERSONNEL PRACTICES," OR OF HOW MANAGEMENT'S PRESENTATION OF
 THIS CASE THAT RESULTED IN THE FILING BY THE UNION OF "ALLEGED UNFAIR
 LABOR PRACTICES," CONCERN THE QUESTION BEFORE THE AUTHORITY OF WHETHER
 THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS CONTRARY TO ANY LAW,
 RULE, OR REGULATION OR IS DEFICIENT ON ANY OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR CASES.  FURTHERMORE,
 THE UNION FAILS TO DEMONSTRATE IN WHAT MANNER THE ARBITRATOR'S AWARD IS
 DEFICIENT AS A RESULT OF THE ALLEGED MISCONDUCT OF THE ACTIVITY IN ITS
 CASE TACTICS AND PRESENTATION BEFORE THE ARBITRATOR.  AS HAS BEEN NOTED,
 THE ARBITRATOR CONFINED HIMSELF TO THE THRESHOLD QUESTION OF WHETHER IN
 THE PARTICULAR CIRCUMSTANCES OF THIS CASE THE GRIEVANCE WAS MOOT.  THIS
 WAS THE SOLE AND DISPOSITIVE ISSUE RULED ON BY THE ARBITRATOR.  FINDING
 THE GRIEVANCE MOOT, HE RULED THAT THE GRIEVANCE AS HAD BEEN PRESENTED TO
 HIM BY THE PARTIES WOULD NOT BE ACTED UPON.  THE UNION'S EXCEPTION THAT
 THE AWARD IS FATALLY DEFECTIVE BECAUSE OF THE ALLEGED MISCONDUCT OF THE
 ACTIVITY PROVIDES, IN THE CIRCUMSTANCES OF THIS CASE, NO BASIS FOR
 FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF
 THE AUTHORITY'S RULES.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ ALTHOUGH THE UNION'S EXCEPTIONS WERE FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425(1980), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.