LR Corner
Friday, November 05, 2010

FLRA Rules That FAA Violated Statute by Refusing to Continue Arbitration of ATL/A80 Upgrade with Arbitrator Ross

The FLRA unanimously upheld Administrative Law Judge Paul Lang’s ruling that FAA had committed an unfair labor practice when it refused to participate in an arbitration proceeding with NATCA over the grievance involving classification of ATL/A80 . Arbitrator Ross ruled the grievance arbitrable in a bifurcated hearing. The FAA filed exceptions and also notified Arbitrator Ross of his unilateral removal by the FAA. The FLRA ruled on the exceptions and remanded the case to the parties to be resubmitted before Arbitrator Ross on the merits. 

The FAA refused to resubmit the grievance to Arbitrator Ross and, thus, NATCA filed the instant ULP charge. ALJ Lang found that the FAA committed an unfair labor practice for its refusal to resubmit the grievance to Arbitrator Ross. He found that the FAA did not have a contractual right to unilaterally remove the arbitrator during a pending grievance, that there was no past practice in unilaterally removing an arbitrator after the parties’ joint selection, and that the arbitrator would not be biased in continuing to arbitrate the grievance. ALJ Lang ordered the FAA to cease and desist from refusing to participate in proceedings before Arbitrator Ross and interfering with employees’ rights under the Statute, as well as to take affirmative action to participate in the proceeding before Arbitrator Ross concerning the ATC grievance, if available, (or to mutually select another arbitrator and participate in that proceeding) and to post a notice nationwide.  

The FAA filed exceptions to that decision claiming 1) NATCA refused to comply with the FLRA’s decision to remand because NATCA would not select another arbitrator; 2) the ALJ misinterpreted the contract regarding unilateral termination of an arbitrator and that proceeding before Arbitrator Ross is improper due to bias; and 3) a nationwide posting is inappropriate. The FLRA denied the first two exceptions and dismissed the third. The FLRA ruled that respondent was not entitled to unilaterally remove the jointly selected arbitrator and that requiring the FAA to proceed before Arbitrator Ross would not be inappropriate due to bias. The FLRA dismissed the FAA’s argument about the scope of the posting as not properly before it because the FAA failed to raise these arguments before the ALJ. The FLRA upheld the ALJ’s remedy and order.