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

[ v62 p54 ]

62 FLRA No. 15

UNITED STATES
DEPARTMENTOF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION, AFL-CIO
(Union)

0-AR-4141

_____

DECISION

March 23, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert T. Simmelkjaer 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 grievance was not barred by an earlier-filed unfair labor practice (ULP) charge. The Arbitrator sustained the grievance alleging that the Agency violated the parties' agreement by unilaterally changing basic watch schedules. To remedy the violation, the Arbitrator ordered a return to the status quo and backpay. For the reasons set forth below, we find that the award is contrary to law and set it aside.

II.     Background and Arbitrator's Award

      The Union filed a ULP charge alleging that the Agency violated the Statute by placing "individuals on a new schedule without completing an appropriate bidding process[.]" Award at 8. That same day, the Union also filed a grievance alleging that the Agency implemented "a unilateral change in the basic watch schedule" in violation of the parties' agreement. Id. The Union later withdrew the ULP charge. See id. at 19. The Union's grievance was unresolved and was submitted to arbitration, where the Arbitrator first considered whether "the instant grievance [was] arbitrable." Id. at 2.

      The Arbitrator explained that, in order to show that the grievance was barred by § 7116(d) of the Statute and, therefore, not arbitrable, the Agency had to show that: (1) the issue raised in the grievance was the same issue raised under the ULP procedure; (2) such issue was earlier filed under the ULP procedure; and (3) the selection of the ULP procedure was at the Union's discretion. [*]  See id. at 15. As to the first and third requirements, the Arbitrator found that the issues and legal theories advanced in both the ULP charge and the grievance were the same and that the Union, in its discretion, selected the ULP procedure.

      As to the second requirement, the Arbitrator found that both the ULP charge and the grievance were filed on the same day. The Arbitrator found that "the Union representative denied on the ULP form that he `raised this matter in any other procedure[.]'" Id. at 19. However, the Arbitrator explained that the Union official's denial would be "ostensibly valid if he perceived the theories and subject matter to be different at the time the ULP [charge] and grievance were filed[.]" Id. The Arbitrator declined to "assume" that the ULP charge was filed first "absent probative evidence as to the sequence of the filings[.]" Id. at 18. Finding no probative evidence that the ULP charge was filed first, the Arbitrator concluded that the grievance was not barred by § 7116(d) of the Statute and, therefore, was arbitrable.

      Turning to the merits, the Arbitrator found that the Agency violated the parties' agreement as alleged in the grievance. He ordered the Agency to restore the schedules to the status quo and to pay backpay to any employees who lost pay as a result of the violation.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency asserts that the Arbitrator based his arbitrability finding on the nonfact that the Union official perceived the subject matter of the ULP charge and the grievance to be different at the time he filed the ULP charge. According to the Agency, this finding is not [ v62 p55 ] supported by the record because, as the Arbitrator acknowledged, the Union official's "mindset . . . when he filed the ULP was not addressed" at the hearing. Exceptions at 18 (quoting Award at 15). According to the Agency, this nonfact was a central fact underlying the award, but for which the Arbitrator would have reached a different conclusion.

      The Agency also claims the award is contrary to law because, as relevant here, it violates § 7116(d) of the Statute. In this regard, the Agency asserts that, by declaring on the ULP charge form "that he did not raise this matter in any other procedure," the Union official asserted that the matter was not earlier-raised in the grievance procedure. Id. at 13. As such, the Agency asserts that the Authority "must conclude that the ULP charge was filed" first. Id. at 14.

B.      Union's Opposition

      According to the Union, the award is not based on a nonfact because the issue of whether the ULP charge was filed before the grievance was disputed below. Opposition at 14. Also, according to the Union, the award is not contrary to law because "[n]othing presented at the hearing indicates that the ULP was filed earlier than the grievance." Id. at 11. In this regard, the Union asserts that the ULP charge and the grievance were filed simultaneously and that nothing in the Statute "would indicate [that] a simultaneously filed ULP would [bar] a grievance." Id. at 12.

IV.      Analysis and Conclusions

A.      The Award Is Not Based On a Nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id. <