[ v62 p469 ]
62 FLRA No. 85
NATIONAL AIR TRAFFIC
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
June 9, 2008
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert W. Landau filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. Part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator found that the grievant's suspension was for such cause as would promote the efficiency of the service because the grievant failed to comply with applicable air traffic control performance standards.
For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is an air traffic controller who committed two operational errors and three performance deficiencies during a nine-month period. These operational errors and performance deficiencies resulted in two mandatory skills-enhancement trainings, a period of decertification during which time the grievant was required to undergo remedial training for recertification, and the receipt of three Quality Assurance Reviews, which documented the incidents as performance deficiencies.
As a result of the incidents, the grievant's supervisor proposed that the grievant be suspended for thirty days without pay for careless work performance. The grievant submitted a written response to the proposed disciplinary action and based on that response, the supervisor withdrew two items from the proposed disciplinary action. Weighing factors that the collective bargaining agreement (CBA) requires the Agency to consider in assessing appropriate disciplinary penalties, the air traffic manager reduced the proposed thirty-day suspension to a fourteen-day suspension. The Union filed a grievance contesting the suspension, which was unresolved and submitted to arbitration.
At arbitration, the parties stipulated to the following issue: "Was [the grievant's] 14-day suspension for such cause as would promote the efficiency of the service? If not, what remedy is appropriate?" Award at 2.
The Arbitrator rejected the Union's argument that the grievant's performance was no different than that of other air traffic controllers at the facility, and that, consequently, he did not act carelessly. The Arbitrator also rejected the Union's contention that the grievant had not been given adequate notice that his operational errors or performance deficiencies might be used to support disciplinary action against him. Instead, the Arbitrator found that the grievant had been given reasonable notice that his performance was regarded as deficient and that these deficiencies could subject him to discipline for negligent or careless work performance. Further, the Arbitrator decided that the Agency's discipline of the grievant was prompt and reasonable in accordance with the CBA.
Additionally, the Arbitrator determined that the Agency demonstrated by a preponderance of the evidence that the grievant failed to comply with applicable air traffic control performance standards with respect to the grievant's two operational errors and three performance deficiencies. According to the Arbitrator, "[w]hen an air traffic controller has multiple performance deficiencies within a relatively short period of time despite a period of decertification and remedial training, the Agency is justified in treating the controller's continuing deficient performance as a disciplinary matter and may impose an appropriate penalty consistent with the Douglas factors and the Agency's table of penalties for disciplinary offenses." [n*] Id. at 14. The Arbitrator concluded that the grievant's suspension was for such cause as would promote the efficiency of the service, and consequently, he denied the grievance. [ v62 p470 ]
III. Positions of the Parties
A. Union's Exceptions
The Union asserts that "the Arbitrator erred in determining that [the grievant] acted carelessly or recklessly" because, according to the Union, the Arbitrator failed to "consider record facts" such as: (1) the overall increase in operational errors both at the grievant's facility and facilities nationwide due to an increase in air traffic and reduced staffing; and (2) the similar performance records of other air traffic controllers at the facility who were not disciplined. Exceptions at 7-8.
The Union also asserts that the Arbitrator applied the wrong legal standard in resolving the grievance. The Union claims that "the Arbitrator's decision merges the standards for air traffic control under FAA order 7110.65 with a standard of care similar to legal negligence." Id. at 8. Additionally, the Union contends that the Arbitrator did not correctly apply the standards that the MSPB applies in resolving charges of careless or negligent performance. The Union also alleges that the legal authority relied upon by the Arbitrator is not applicable in this case.
B. Agency's Opposition
The Agency argues that, contrary to the Union's contention, the Arbitrator considered "record facts" in rendering his decision. Opposition at 4. The Agency also maintains that the Arbitrator correctly applied the proper standard set forth in FAA order 7110.65P. Additionally, the Agency claims that the Union has not shown that the award conflicts with any Agency regulation or law.
IV. Analysis and Conclusions
A. The Union has not demonstrated the Arbitrator did not provide a fair hearing.
We construe the Union's argument that the Arbitrator failed to consider material facts in resolving the dispute as a contention that the Arbitrator failed to provide a fair hearing. AFGE, Local 1668, 50 FLRA 124, 126 (1995) (Local 1668) (union's complaint that arbitration award did not reflect evidence presented at hearing construed as failure to provide fair hearing argument). An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole. See generally United States Dep't of the Air Force, Hill Air Force Base, Utah, 39 FLRA 103, 105-07 (1991).
The Union contends that the Arbitrator ignored the facts that: other air traffic controllers at the grievant's facility and throughout the nation have similar performance records to that of the grievant but have not been disciplined; and operational errors increased both at the grievant's facility and nationwide. However, the Arbitrator explicitly addressed these factors in the award. Specifically, he found that, even if the grievant's performance was no different from that of other air traffic controllers, that fact did not prohibit the Agency from disciplining the grievant based on the circumstances of his own performance. In finding that the disciplinary action was warranted in this circumstance, the Arbitrator stated:
[E]ach employee's performance must be evaluated on its own merits. The standards of "due care" applicable in this case are those set forth in the FAA's orders, regulations and agreements . . . . A "reasonably prudent air traffic controller" would be expected to comply with these standards. The fact that a [sic] certain other controllers at the same facility may also have failed to comply with applicable performance standards does not excuse the [g]rievant's noncompliance with these standards . . . .
Award at 15-16.
Thus, in concluding that the Agency did not abuse its discretion by suspending the grievant for his operational errors and performance deficiencies, the Arbitrator considered the very evidence that the Union claims that the Arbitrator ignored. Consequently, the Union has not demonstrated that the Arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced the Union so as to affect the fairness of the proceeding. See Local 1668, 50 FLRA at 126. Accordingly, the Union has not established that the Arbitrator failed to provide a fair hearing, and we deny the exception.
B. The award is not contrary to law.
When a party's exception challenges an arbitration award's consistency with law, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. SSA Headquarters, Balt., Md., 57 FLRA 459, 460 (2001); see also NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable legal standard. See United States Dep't of Defense, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998) [ v62 p471 ] (DOD). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
The Union claims that the Arbitrator did not apply the correct legal standard to determine whether the grievant's performance was careless or negligent. However, the Arbitrator correctly determined that the proper standards are set out in the FAA's orders, regulations and agreements, and the letter of agreement with the military, noting that a "reasonably prudent air traffic controller" would be expected to comply with those standards. Award at 15-16. Absent a demonstration by the Union that the standard set out in order 7110.65P is not the correct standard or that the Arbitrator incorrectly applied this standard, and noting that the Union has failed to provide the Authority with the text of order 7110.65P, we find that the Union has not demonstrated that the award is contrary to law on this basis. DOD, 55 FLRA at 40 (the Authority defers to the arbitrator's underlying factual findings when determining whether an arbitrator's legal conclusions are consistent with the applicable legal standard).
The Union also claims that the Arbitrator's award is contrary to law because the Arbitrator improperly applied three of the five factors explained in Fowler & Vitaro's MSPB Charges and Penalties, at 355 (2d ed. 2003) (MSPB Charges and Penalties), which the Union claims "must be demonstrated . . . to support a charge of careless or negligent performance causing risk of danger or injury[.]" Exceptions at 8. However, the Union has failed to establish that the Arbitrator was required to apply the principles encompassed in MSPB Charges and Penalties. The standards discussed in MSPB Charges and Penalties apply to litigation before the MSPB. Arbitrators are not required to apply MSPB standards in cases, like this one, that do not involve serious discipline under 5 U.S.C. §§ 4303 and 7512. See Soc. Sec. Admin., St. Paul, Minn., 61 FLRA 92, 94 n.6 (2005).
Finally, the Union claims that certain authority cited by the Arbitrator - specifically two arbitration awards and Brehmer v. FAA, 294 F.3d 1344 (Fed. Cir. 2002) (Brehmer) - are distinguishable from this case. The Arbitrator cited that authority in determining that the Agency's reliance on the grievant's operational errors and performance deficiencies to justify disciplinary action was acceptable in this case. The Arbitrator's reliance on these cases does not render the award deficient. In this regard, arbitration awards are not precedential. See, e.g., AFGE, Local 2459, 51 FLRA 1602, 1606 (1996). Moreover, Brehmer involved a termination under 5 U.S.C. § 7512, and was decided under MSPB law, which, as discussed above, does not apply here. Although the Arbitrator was not bound by the authority on which he relied, the Union has not demonstrated that the Arbitrator erred by considering that authority in rendering his decision. Thus, the Union's exception does not provide a basis on which to conclude that the award is contrary to law.
Based on the foregoing, we deny the exceptions.
The Union's exceptions are denied.
Footnote # * for 62 FLRA No. 85 - Authority's Decision
The Douglas factors were developed by the Merit Systems Protection Board (MSPB) for evaluating whether a particular disciplinary action should be mitigated. See Douglas v. Veterans Administration, 5 MSPB 313 (1981).