25:0680(56)AR - Panama DOD Employees Coalition and HQ 193d Infantry Brigade, Army (PANAMA) -- 1987 FLRAdec AR

[ v25 p680 ]
The decision of the Authority follows:

 25 FLRA No. 56
                                            Case No. O-AR-1200
    This case is before the Authority on exceptions to the award of
 Arbitrator Eric J. Schmertz filed by the Department of the Army (Agency)
 under section 7122(a) of the Federal Service Labor-Management Relations
 Statute and part 2425 of the Authority's Rules and Regulations.
    The dispute in this matter arose when the Activity implemented a
 five-year rotation procedure for Government-owned or controlled family
 housing.  Under the rotation procedure, 68 civilian employees who had
 occupied family housing for more than five years were given notices to
 vacate in order that the housing could be assigned to employees who had
 not yet been assigned Government-owned housing.  The Activity based its
 action on Army Regulation (AR) 210-50 (1 February 1982), Section 3-19(d)
 which provided:
          d.  Key and essential civilian employees will normally live in
       or continue assignment of family housing without time limitations.
        Other civilian employees will normally live in military family
       housing for not more than 5 years in the same geographic location.
        Major commanders will terminate family housing assignments after
       5 years when required as follows:
          (1) To maintain equitable and reasonable distribution of assets
       between military and civilian requirements, or
          (2) To permit other eligible civilian employees to be assigned
       from housing wait lists.
    The Union contended in its grievance that the notices to vacate and
 the enforcement of the five-year limitation on civilian housing
 assignments were improper changes in conditions of employment which were
 retroactively imposed on the affected employees without being negotiated
 with the Union.  The Union maintained before the Arbitrator that AR
 690-300, which granted Government-owned housing as an overseas
 employment benefit with no time limitation, was controlling in this case
 over AR 210-50.
    The Arbitrator rejected the Union's contention regarding AR 690-300
 and ruled that the regulation had been modified by AR 210-50, which was
 more specific concerning the five-year limitation.  He noted that both
 regulations were "applicable Government-wide regulations" within the
 meaning of the parties' agreement which expressly incorporated such
 regulations and that AR 210-50 was in effect at the time the agreement
 became effective in 1984.  He ruled further that the five-year
 limitation was retroactive under the agreement and that it was not a new
 condition of employment which should have been negotiated with the
    However, apart from those rulings, the Arbitrator found that the
 five-year limitation embodied in previous versions of AR 210-50 was
 substantially modified in 1975 when an action enforcing the limitation
 was canceled by an order of the Adjutant General for the 193d Infantry
 Brigade and replaced with a new system under which available housing was
 to be shared by military and civilian personnel under a pro rata share
 housing formula.  The Arbitrator found that nothing in the record
 persuaded him that the pro rata system implemented in 1975 had been
 effectively revoked, terminated or superseded.  He rejected the
 Activity's arguments to the contrary as inferential, inconclusive, and
 insufficient to show that the 1975 pro rata system had ever been
 rescinded.  He also rejected the Activity's contention that he had no
 authority to consider the pro rata share because it was not part of the
 Union's grievance.  He ruled that the application of the pro rata share
 was directly related to the issue of the propriety of the notices to
 vacate and the application of the five-year limitation and was a part of
 the original issue in the dispute.  For those reasons, he granted the
 grievance based on his finding that the pro rata share was still in
 effect.  As his award, he ordered the Activity to cancel the notices to
 vacate and to apply the pro rata share system.
    A.  Contentions
    The Agency contends that the Arbitrator exceeded his authority by
 considering an issue not presented to him by the parties and that his
 framing of the issue was erroneous.  According to the Agency, the only
 issues presented were whether AR 690-300 was controlling over AR 210-50
 and if so whether the Activity violated the agreement by enforcing the
 five-year limitation;  the issue of the validity of the pro rata system
 was never raised by either party.
    B.  Analysis and Conclusions
    The Agency's first exception fails to show that the Arbitrator
 exceeded his authority by deciding an issue not before him.  There was
 no joint stipulation of the issue by the parties.  The Arbitrator framed
 the issue to be decided as the propriety of the notices to vacate and
 the application of the five-year rule on which the notices were based.
 The Arbitrator's consideration of the pro rata system was responsive to
 and directly related to that issue.  See U.S. Department of Education
 and National Council of Department of Education Locals, Council 252,
 AFGE, Local 3893, 22 FLRA No. 97 (1986);  Department of Defense
 Dependents Schools and Overseas Education Association, 12 FLRA 52
 (1983).  The Agency's argument constitutes mere disagreement with the
 Arbitrator's reasoning and conclusions in determining the issue.
 Therefore, the first exception fails to provide a basis for finding the
 award deficient.
    A.  Contentions
    In its second exception the Agency contends that the Arbitrator's
 award is based on the nonfact that the pro rata share formula for
 allocating housing which was announced in 1975 and incorporated in AR
 210-50 at that time was still in effect at the time of the grievance.
 The Agency maintains that had it known that the pro rata formula would
 have been introduced as a new issue, it would have introduced more
 evidence to prove that it was no longer in effect as part of AR 210-50.
    B.  Analysis and Conclusions
    The second exception fails to establish that the award is based on a
 nonfact.  The Agency is only disagreeing with the Arbitrator's reasoning
 and conclusions regarding the validity of the pro rata rule implemented
 in 1975;  its attempt to relitigate the merits of the case before the
 Authority does not provide a basis for finding the award deficient.  See
 General Services Admi