National Air Traffic Controllers Association (Union) and United States Department of Transportation Federal Aviation Administration (Agency)
63 FLRA No. 167
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
ORDER DISMISSING EXCEPTION
August 6, 2009
Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Joshua M. Javits filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority’s Regulations. The Agency filed an opposition to the Union’s exception.
The Arbitrator denied the grievance over the 3-day suspension of the grievant. For the reasons that follow, we dismiss the Union’s exception as moot.
II. Background and Arbitrator’s Award
The parties submitted to arbitration the issue of whether the grievant’s 3-day suspension violated the parties’ collective bargaining agreement. As a threshold matter, the Agency contended that the grievance was not arbitrable “because it was improperly filed by the Union under the expired 2003 Collective Bargaining Agreement.” Award at 10. The Agency claimed that, at the time the grievance was filed, it “had implemented the new 2006 Collective Bargaining Agreement.” Id. The Union contended that the grievance was properly filed under the 2003 agreement because it “has always taken the position that the 2003 contract is the only valid contract between the parties.” Id. at 15. The Union claimed that, until the litigation over the legitimacy of the 2006 agreement is finally resolved, “the 2006 contract is neither final nor binding as a matter of law[.]” Id. at 17. The Arbitrator concluded that the grievance was arbitrable. He found that because litigation regarding the 2006 agreement was ongoing, the filing of the grievance under the 2003 agreement was “permissible.” Id. at 23. However, he concluded that the merits of the grievance “must be considered under the terms of the contract that was in effect at the time of its filing[.]” Id. at 24.
On the merits, the Arbitrator concluded that the grievant had engaged in the misconduct alleged by the Agency and that