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52:0860(84)AR - - National Air Traffic Controllers Association and DOT, FAA, Western-Pacific Region, John Wayne Air Traffic Control Tower, Costa Mesa, CA - - 1997 FLRAdec AR - - v52 p860

[ v52 p860 ]
The decision of the Authority follows:

52 FLRA No. 84
















January 16, 1997


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Thomas H. Vitaich filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied the grievance, which sought to overturn a 1-day suspension of the grievant.

For the following reasons, we conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant is an air traffic control specialist. Controllers are permitted to take a certain number of familiarization flights, or "FAM" trips, in a duty status or on their own time, at no cost to themselves or the Agency. The grievant requested and was approved for a non-duty FAM round-trip flight in connection with a Union training course in Las Vegas scheduled for January 9-11, 1996. According to the joint stipulation, the grievant remained in a duty status until shortly before the scheduled FAM flight, when he asked his supervisor if he knew where his FAM tickets were. The supervisor, who had signed the request, answered in the negative. The grievant made no other inquiries concerning the location of the tickets.

The grievant then drove with a colleague to Las Vegas. Upon his return, he was granted 8 hours of compensatory time in settlement of an informal contractual complaint concerning his approved FAM trip. According to the settlement, the remedy was in consideration of the fact that driving round-trip to Las Vegas and back requires significantly more time than flying, and

[i]n consideration of the fact that [the grievant], after having made an effort to locate his completed [tickets], was in the position of having to choose between continuing to attempt to reconcile the situation of the missing forms, while time to catch his flight grew short, or to consequently drive to Las Vegas - and, in consideration of the fact that said situation, which is the sole reason [the grievant] chose to drive rather than fly to Las Vegas, was created because the facility perhaps did not process and produce said forms in a timely manner[.]

Joint Exh. J.

Management subsequently rescinded the settlement and suspended the grievant for 1 day, because it determined that the settlement was based on false information from the grievant. The grievance based on the suspension was not resolved and was submitted to arbitration on the following issue:

Was the suspension of the Grievant . . . taken for such cause as will promote the efficiency of the service?

If not, [w]hat is the proper remedy?

Award at 2.

As pertinent here, the Arbitrator sustained the suspension, finding that it was taken for such cause as will promote the efficiency of the service.(1) The Arbitrator did not take issue with the grievant's claim that the Agency had not notified him that the paperwork for his tickets was available for pick-up.(2) Rather, the Arbitrator essentially found, as discussed below, that the requirement of notice in the Agency's regulations had been amended by past practice, and that controllers knew that they could get their tickets without notification.

The Arbitrator found that a "FAM folder" had been used as part of a system for issuing FAM tickets for 5 years prior to the incident. Tickets were put in the folder and controllers would pick them up and have them signed by a manager. The Arbitrator concluded that the evidence showed that this amounted to a "'past practice' never challenged by the Union and participated in successfully for said time period." Award at 37. The Arbitrator stated, "[p]ast practice will prevail when it can be shown that the clear language of the contract has been amended by mutual action or agreement." Id. at 20 (emphasis in original). He also stated that although the contract was not at issue, "this longstanding practice [of using the FAM folder] has had mutual acceptance, has had no record of abuse, [and] no record of malfunction[.]" Id.

The Arbitrator also found, contrary to the grievant's claim, that the grievant "was no stranger to the FAM Folder." Id. at 38. Thus, the Arbitrator concluded that "the decision of the Grievant to opt to carpool . . . rather than fly to Las Vegas was of the Grievant's choosing[,]" and that if he had "properly inquired of personnel in the area at the time of his concern for his tickets, he could easily have gotten them and made his flight." Id.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the award conflicts with the Agency's regulation that requires the Agency to notify employees that tickets are available for pick-up. It states that no one contests the fact that this did not happen. In addition, the Union cites several examples to show that the award is based on nonfacts. For example, the Union takes issue with the Arbitrator's findings that the tickets had been left in the FAM folder and that the grievant knew of the existence of the folder. Also, in this connection, the Union disputes the conclusion that a past practice existed concerning employee use of the FAM folder.

B. Agency's Opposition

The Agency opposes the exceptions on the ground that the Union has submitted no new evidence and that the exceptions are mere disagreement with the decision of the Arbitrator. The Agency argues that the award does not conflict with an Agency regulation, and states that although it "may not have complied with this rule," the arbitration was concerned with the grievant's misconduct involving a material misrepresentation, "not the agency's failure to comply with a minor and irrelevant provision of an agency rule." Opposition at 2.

The Agency also argues that the award is not based on a nonfact, and that the Union's exceptions merely disagree with the Arbitrator's credibility resolutions.

IV. Analysis and Conclusions

A. The Award Is Not Inconsistent With the Agency Regulation

Having examined the Agency regulation raised by the Union, we reject the Union's contention that the award conflicts with the regulation. We conclude that the regulation, which addresses administrative matters in connection with FAM trips, has no application to the Arbitrator's finding that the Agency had just cause for its 1-day suspension of the grievant for his misconduct. Moreover, as found by the Arbitrator, the regulation had been modified by the Agency's practice of placing the forms in a folder for pick-up without notice to the employees. Therefore, the award does not conflict with the regulation and this exception provides no basis for finding the award deficient.

B. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that an appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. Federal Employees Metal Trades Council, Local 127 and U.S. Department of the Navy, Mare Island Naval Shipyard, Mare Island, California, 51 FLRA 1259, 1261 (1996).

Although the Union essentially asserts that the Arbitrator based the award on an incorrect finding that the grievant and other Union officials, as well as the grievant's supervisor, knew of the existence of the FAM folder, the Union has not demonstrated that the Arbitrator's determination was erroneous. To the contrary, in some instances the Union merely argues with the Arbitrator's credibility findings, and in others, it disputes his interpretation of the facts.

Moreover, even if the Arbitrator's conclusion were incorrect, he found that the grievant's decision to opt to drive rather than to fly to Las Vegas was of his own choosing and that he could have obtained his tickets in time if he had made the proper inquiries. Therefore, the Arbitrator's determination that the grievant knew about the FAM folder was not central to his decision. In these circumstances, the Union has not demonstrated that the award is based on a nonfact. Accordingly, this exception provides no basis on which to find the award deficient.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. The Arbitrator cited Article 10 of the parties' collective bargaining agreement as a "relevant" contract provision. Award at 3. Article 10, Section 2 provides, in pertinent part:

Disciplinary/adverse actions may not be taken against an employee except for such cause as will promote the efficiency of the service. . . .

Joint Exh. A.

2. The Agency regulation on "FAM" trips includes the provision that the Administrative Officer shall:

(3) inform employee Forms 7000-5 are available for employee pick-up.

Joint Exh. D.