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55 FLRA No. 14
SPORT AIR TRAFFIC
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE FLIGHT TEST CENTER
EDWARDS AIR FORCE BASE, CALIFORNIA
December 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Edward E. Hales 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. [n1]
II. Background and Arbitrator's Award
A. Facts Giving Rise to this Grievance
This case concerns a dispute between the SPORT Air Traffic Controllers Organization (hereinafter referred to as "Union") and the United States Air Force (hereinafter "Agency") over the Agency's implementation of a new procedure for the coordination of air traffic. Award at 2. In 1994, the Agency acquired a new computer-aided system for the control of air traffic, which brought about discussion between the Federal Aviation Administration ("FAA") and the Agency regarding the implementation of new procedures for the transfer of flight data. Id.
The new computer system eliminated the need for air traffic controllers to notify the FAA by telephone that an aircraft was leaving the air space around Edwards flight center. Id. The new system allowed all relevant flight data to be encoded in a computer symbol that would appear on the radar screens of both the FAA, High Desert Radar Approach Control, and the SPORT Radar Control Facility ("SPORT") operated by members of the bargaining unit. Id. Under this new system, the FAA required that all aircraft must be identified by a five-letter call sign. Id. at 2. Under the old system, SPORT air traffic controllers identified aircraft operating within its airspace by a two-letter call sign. Id. at 3.
Effective October 11, 1996, a Letter of Agreement ("LOA") entered into by the FAA and the Agency required SPORT air traffic controllers to use the five-letter call sign instead of the two-letter call sign. Id. at 2-3. The Union objected to implementation of the new procedure required by the LOA without prior bargaining with the Union as required by the parties' collective bargaining agreement. The Union then filed a grievance claiming a violation of Article 2, Section 1, and Article 6 of the parties' agreement. [n2] Id. at 3.
B. Arbitrator's Award
The Arbitrator noted that the parties did not agree to a joint submission of the issue to be arbitrated pursuant to Article 30, Section 4 of the agreement. [n3] Id. at 4. The Arbitrator noted that this provision allowed him to determine the issue in dispute when no joint submission was made. Id. Accordingly, the Arbitrator framed the issue as follows:
Does the evidence presented in this case reveal that the [Agency] was required to negotiate with the Union the change to the five (5) letter call sign prior to any agreement with the FAA implementing the new five (5) letter call sign in the October 11, 1996 LOA?
Id. at 5.
With regard to the Union's position, the Arbitrator stated that "[t]he basic thrust of the Union's position . . . [ v55 p35 ] is that the [Agency] was required to bargain with the Union concerning the implementation of the October 11, 1996 LOA prior to any agreement with the FAA." Id. at 3. The Arbitrator then stated that the Union's position "appears to suggest" that the new procedure involved a matter of mandatory bargaining under Article 2, Section 1 of the parties' agreement. Id. Also, the Arbitrator stated that the Union's position "appears to suggest" that the new procedure affected the "conditions of employment" of bargaining unit employees. Id.
With regard to the Agency's position, the Arbitrator stated that its argument is based on three factors: first, the Union did not file its grievance in a timely fashion; second, the Agency had a right to enter into the LOA changing to the five-letter call sign, pursuant to its management rights set forth in Article 4, Section 1 of the agreement; third, the change in procedure was "de minimis" in nature. Id. at 3-4.
In addressing the issue, the Arbitrator first reaffirmed a finding he had made in an earlier award that the grievance was timely filed. Id. at 5. The Arbitrator then found that the Agency's change of procedure did not appear to fall within the scope of matters generally considered to be mandatory subjects of bargaining. Id. at 7. The Arbitrator also found that there was "significant merit" to the Agency's position that the change of procedure was "de minimis" in nature. Id. at 8.
The Arbitrator noted that the grievance requested, as a remedy, the cancellation of the LOA, and that the language of the grievance was broad. However, he found that "the evidence presented by the Union in this matter appeared to only protest the implementation of the five (5) letter call sign in the October 11, 1996 LOA[,]" and not the LOA itself. Id. at 9. Therefore, the Arbitrator ruled that the Union had presented no evidence that would justify cancellation of the LOA. Id.
The Arbitrator concluded that the evidence showed: first, the Agency's change from a two-letter to a five-letter call sign did not violate either Article 2, Section 1, or Article 6 of the agreement; second, the Agency's action was pursuant to management's authority under the agreement; third, the change was implemented for safety reasons. Id. The Arbitrator then emphasized that, "[i]n reviewing the entire record of evidence developed in this case," the evidence shows that "the primary concern of the air traffic control system is flight safety[,]" and that "flight safety must take precedence over any and all other considerations." Id. at 9-10. In sum, the Arbitrator held that the Agency's agreement with the FAA, embodied in the LOA, did not violate the parties' agreement.
The Arbitrator denied the Union's grievance. He also ordered that the Union bear the fees and expenses incurred by the Arbitrator because the Union was the losing party in the case. Id. at 10.
III. Positions of the Parties
A. Union's Exceptions
The Union states that after the Arbitrator ruled the grievance was timely, but prior to his award on the merits, the parties entered into a Memorandum of Understanding (MOU), dated July 18, 1997. Exceptions at 2. The Union states that the effect of the MOU was to cancel the LOA, thereby allowing bargaining unit employees to revert back to using the two-letter call sign. Id. The Union states that, after the parties signed the MOU, the Arbitrator canceled the scheduled hearing when the Union advised him that arbitration was no longer necessary. Id. The Agency, however, then notified the Union by letter that it could not comply with the terms of the MOU. See Exceptions, Document 6. Subsequently, the Union notified the Arbitrator that it was reinstating the grievance and asked for a hearing date. See Exceptions, Document 7. Prior to the hearing, the Union forwarded to the Arbitrator a statement of the issues the Union believed should be arbitrated, and requested as a remedy an order that the Agency comply with the MOU. Exceptions at 3.
The Union submits that the Arbitrator "did not address the issue of the MOU in his decision." Id. at 3. On this point, the Union argues:
[The Arbitrator's] studied decision not to address the MOU and its repudiation has the effect of making his decision an accomplice to [a] violation of 5 U.S.C. § 7116 (a)(1) and (5). Additionally, his decision has the effect of violating Article 29, Section 1, of the CBA between the [p]arties.
Id. at 4. [n4] The Union also states that the award "completely ignores" Department of Defense, Dependents Schools, 50 FLRA 424 (1995) (DOD Dependents Schools), which the Union asserts "enunciates the law regarding the repudiation of agreements between Parties who have a negotiated CBA . . . . " Exceptions at 1. Furthermore, the Union argues that the matter of "flight safety" was not "involved in the issue/s being arbitrated." Id. at 4. The Union also contends that the evidence does not support the Arbitrator's finding that the change in procedure was done for reasons of "flight [ v55 p36 ] safety". Id. Instead, the Union claims that this is "a bogus reason for repudiating an agreement." Id.
Finally, the Union requests that the Authority direct the Agency to comply with the MOU, reimburse the Union $500 for expenses resulting from the Agency's repudiation of the MOU, and "take any other action deemed appropriate by the Authority." Id. at 5.
B. Agency's Opposition [n5]
The Agency alleges that the Union does not clearly articulate how the award violates section 7116(a)(1) and (5) of the Statute. Opposition at 2. The Agency states that the Union appears to be arguing that "the results of a failed attempt to settle the underlying grievance constitute bad faith bargaining." Id. In this regard, the Agency points out that the issue at the hearing was not the MOU, but whether the change in procedure from a two-letter to a five-letter call sign "was a matter for substantive negotiations with the union." Id. at 2-3. The Agency also submits that the Union does not state how the award violates the parties' agreement. Id. at 3. The Agency concludes that the Union's arguments constitute "mere disagreement" with the award. Id.
The Agency states that after the Arbitrator issued the award, the Union filed a "Motion for Reconsideration," to which the Agency filed a response, and the Arbitrator replied. Id. at 2. The Agency contends that it is necessary that the Authority note these documents in order to "fully understand the events that occurred after the . . . award." Id. In its motion, the Union argues that the Arbitrator should reconsider the award and uphold the MOU. See Opposition, Exhibit B at 1. Specifically, the Union claims that: (1) the award violates Article 29, Section one, of the agreement by negating the MOU; (2) the issue of the MOU was the controlling issue of the arbitration; (3) because the award violates Article 29, Section 1 of the agreement, it in effect destroys the parties' ability to settle grievances. In response, the Arbitrator dismissed the motion, stating that he considered all the issues that were presented to him at the hearing, and that any new arguments were not "well placed." See Opposition, Exhibit D at 3.
IV. Analysis and Conclusions
The Union does not except to the Arbitrator's holding that the change from a two-letter to a five-letter call sign did not violate the bargaining provisions of Article 2, Section 1, or Article 6 of the parties' agreement. The Union also does not except to the holding that the Agency had the authority under the agreement to make the change and enter into the LOA with the FAA, or that the Union should bear the fees and expenses of arbitration. Rather, it is apparent that the Union is arguing that the award is deficient because it failed to address the MOU and the Agency's repudiation of it. The Union also argues that the matter of "flight safety" was not "involved in the issue/s being arbitrated." Exceptions at 4.
We construe the Union's exceptions as a contention that the Arbitrator exceeded his authority. In particular, we note that neither the claimed violation of the Statute nor the parties' agreement relates to a failure to bargain over the change in call sign. Instead, the claims relate to the MOU.
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996). In the instant case, the parties did not stipulate the issue. Accordingly, the Arbitrator was free to formulate one. See, e.g., Id. at 1378. In the absence of a stipulation by the parties of the issue to be resolved, an arbitrator's formulation of the issues is given substantial deference. See American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Air Force Logistics Command Robins Air Force Base, Warner Robins, Georgia, 50 FLRA 160, 162 (1995).
The Arbitrator framed the issue as whether the Agency was required to negotiate with the Union in order to change the call sign procedure. In resolving this question, the Arbitrator held that the Agency was not required to negotiate with the Union over the change in procedure. Contrary to the Union's claim, the issue did not include a question concerning whether the [ v55 p37 ] Agency was required to comply with the MOU. Indeed, the award makes clear that the Union presented no evidence that would justify canceling the LOA, as contemplated by the MOU. Therefore, the Union has not established that the Arbitrator failed to resolve an issue submitted to him. The Union's citation to DOD Dependents Schools, 50 FLRA 424, is misplaced. In DOD Dependents Schools, the Authority upheld an administrative law judge's decision that the respondent repudiated a settlement agreement. In the instant case, however, the enforceability of the MOU was not at issue.
Similarly, the Union has not established that the Arbitrator exceeded his authority by addressing the issue of flight safety. The Arbitrator found that the record showed that the Agency implemented the change for safety reasons and that flight safety took precedence over any and all other considerations. As the Arbitrator found that the change was implemented for safety reasons, his consideration of flight safety was within the scope of the issue as he framed it. See, e.g., National Association of Government Employees, Local R5-188 and U.S. Department of the Air Force, Seymour Johnson Air Force Base, Goldsboro, North Carolina, 54 FLRA 76, 80-81 (1998) (arbitrator did not exceed his authority when his findings and conclusions were within the scope of the issue as he framed it). To the extent that the Union is disagreeing with the evaluation of the evidence, such disagreement provides no basis for finding that the Arbitrator exceeded his authority or that the award is otherwise deficient. See American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 31 (1995). Accordingly, we deny the Union's exceptions.
Finally, we deny the Union's request for expenses. Since the Union did not prevail before the Arbitrator and its exceptions do not justify finding the award deficient, there is no basis on which to grant the Union's request.
The Union's exceptions are denied.
Footnote # 1 for 55 FLRA No. 14
The Union filed an unsolicited response to the Agency's opposition to the Union's exceptions. As the Authority's Regulations do not provide for the filing of supplemental submissions, and as the Union failed to request permission to file its submission under section 2429.26, we will not consider the document as part of the record. SeeAmerican Federation of Government Employees, Local 2904 and Marine Corps Reserve Support Command, Kansas City, Missouri, 53 FLRA 1261 (1998).
Footnote # 2 for 55 FLRA No. 14
Article 2 addresses Union/Management cooperation prior to changes in personnel, policies and procedures prior to negotiations. Article 6 addresses the Union's opportunity to negotiate over changes in the agreement and past practices.
Footnote # 3 for 55 FLRA No. 14
Footnote # 4 for 55 FLRA No. 14
Footnote # 5 for 55 FLRA No. 14
The Agency requests that the Authority decline to review documents attached to the Union's Exceptions that are the subject of another grievance concerning the parties in this case. Opposition at 2. Both documents are dated later than the October 23, 1997 arbitration hearing, and, therefore, were not presented in the arbitration proceeding. In accordance with section 2429.5 of the Authority's Regulations, the Authority will not consider evidence offered by a party, or any issue, which was not presented at the proceedings before the arbitrator. See, e.g., United States Customs Service, South Central Region, New Orleans District, New Orleans, Louisiana, 53 FLRA 789, 794 (1997) (evidence not offered at hearing held not part of the record, pursuant to section 2429.5 of the Authority's Regulations). We decline to consider these documents.
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