25:0902(74)AR - Bureau of Indian Affairs and NFFE Local 243 -- 1987 FLRAdec AR



[ v25 p902 ]
25:0902(74)AR
The decision of the Authority follows:


 25 FLRA No. 74
 
 BUREAU OF INDIAN AFFAIRS
 Agency
 
 and
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 243
 Union
 
                                            Case No. 0-AR-1195
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 arbitrator Eric B. Lindauer filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerns the Agency's failure to grant
 similar relief to 18 employees that had previously been granted to 9
 employees who successfully appealed a rent increase.  Both groups of
 employees, the 18 non-appellant grievants and the 9 appellants, resided
 in Government quarters at Warm Springs, Oregon in May 1982.  At that
 time, they were notified of an impending rent increase.  The 9 employees
 filed formal appeals of the rent increase with the Agency's Office of
 Hearings and Appeals (OHA).  Ultimately, these 9 appellants prevailed
 and the OHA ordered rescission of the rent increase, ordered that
 certain rental amounts previously withheld from the appellants' pay be
 returned and ordered that no further increase be imposed in the absence
 of a new rental rate survey.
 
    In the meantime, the 18 non-appellants had indicated their desire to
 have the rent increase be reappraised by responding to an Agency
 questionnaire to that effect.  The Union claimed that the employees
 believed that they were filing appeals by responding to the
 questionnaire, although no formal appeals were actually filed.  After
 the 18 non-appellants learned of the OHA's decision concerning the 9
 appellants, the group of 18 submitted a request to the Agency's Area
 Director that the same decision rendered with respect to the 9 employees
 be applied to them as well.  This request was denied whereupon the
 grievance was filed.
 
    The Arbitrator framed the primary issue in dispute, as agreed to by
 the parties, as follows:
 
          Did the Emploter/Agency act in an arbitrary manner when it
       failed to grant similar relief to the eighteen (18) non-appellant
       tenants as the OHA granted to the nine (9) appellant tenants who
       did appeal?  If so, what is the appropriate remedy?
 
    The Arbitrator concluded based on the evidence and arguments before
 him that the Agency had acted in an arbitrary manner by failing to grant
 similar relief to the non-appellants as had earlier been granted to the
 9 appellants by the OHA.
 
    In reaching that conclusion, the Arbitrator made several rulings.
 First, he found that the grievance was timely filed under the provisions
 of the parties' collective bargaining agreement.  He then determined
 that the issue raised was within the scope of the negotiated grievance
 procedure.  As to this latter determination, the Arbitrator found that
 he was empowered by the agreement to resolve questions of arbitrability.
  He further found that Government housing was a matter relating to
 employment and therefore within the definition of grievance in the
 parties' agreement, that is, "any complaint by any employee concerning
 any matter relating to his/her employment . . . or any claimed
 violation, misinterpretation, or misapplication of any law, rule, or
 regulation affecting conditions of employment." He also found that the
 employees' complaint of not being treated equally by the Agency
 concerned a claimed violation, misinterpretation, or misapplication of 5
 U.S.C. Section 2301(b)(2).  /*/ After reaching the conclusion that the
 Agency had acted in an arbitrary manner by failing to grant similar
 relief to the grievants, the Arbitrator ordered that all monies
 collected pursuant to the rental increase ordered on May 6, 1982 be
 refunded to the grievants, subject to any offset that had already been
 provided.
 
                             III.  EXCEPTIONS
 
    The Agency argues that the award is deficient as contrary to law on
 three grounds:  (1) the Arbitrator erred in determining that the issue
 submitted by the Union is within the scope of the collective bargaining
 agreement;  (2) even if the issue is covered by the negotiated grievance
 procedure, the Arbitrator erred in failing to apply the appropriate
 legal standard for holding the Government liable for a refund of rental
 expenses;  and (3) the Arbitrator's award is overly broad in that it
 concerns non-bargaining unit employees and other employees who should
 not be eligible for a refund of rental charges.
 
    More particularly, as to the first ground, the Agency argues that the
 grievance concerns rental rates which is not covered by the negotiated
 grievance procedure but, rather, is a matter specifically provided for
 by Federal statute and implementing Government-wide regulations. The
 Agency also argues that the Arbitrator erroneously applied 5 U.S.C.
 Section 2301(b)(2) to the matter.  As to the second ground, the Agency
 asserts that the Arbitrator erroneously "held the Government liable to
 tenants for rent refunds, on general equitable principles, based on
 misunderstandings created by certain (Agency) officials which he stated
 were relied upon by the tenants." The Agency claims that "it is a well
 established principle that the Government cannot be held liable for the
 mistakes, misinformation or misrepresentations created by its employees
 on the principle of 'equitable estoppel' in accordance with the same
 standards applicable to a private litigant . . . " and argues that the
 Arbitrator failed to apply the appropriate standards in this case.  As
 to the third ground, the Agency argues that a number of the employees
 are supervisors and were therefore not covered by the negotiated
 grievance procedure.  The Agency also asserts that certain other
 employees had not requested a reappraisal of the rental increase and
 therefore could not be considered to have appealed the rental increase
 for which they would now be eligible for a refund.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We find that the Agency's first exception alleging that the
 Arbitrator erred in finding that the grievance was covered by the
 negotiated grievance procedure of the parties' collective bargaining
 agreement fails to establish that the award is deficient.
 
    Section 7103(a)(9) of the Statute defines "grievance" as any
 complaint "by any employee concerning any matter relating to the
 employment of the employee . . . or a claim of breach of a collective
 bargaining agreement or any claimed violation, misinterpretation, or
 misapplication of any law, rule, or regulation affecting conditions of
 employment." Moreover, unless specifically excluded, grievances are
 covered by negotiated grievance procedures.  In this case, as indicated
 above, the Arbitrator found that the employees' grievance concerned a
 claimed violation, misinterpretation or misapplication of law.  Such a
 claim is a "grievance" within the meaning of section 7103(a)(9) and in
 the absence of any specific exclusion properly may be determined by an
 arbitrator to be grievable and arbitrable under negotiated grievance
 procedures.  See Local R-1-185, National Association of Government
 Employees and The Adjutant General of the State of Connecticut, 25 FLRA
 No. 36 (1987), slip op. at 3.  The Agency has not established that the
 employees' grievance was specifically excluded from coverage of the
 parties' negotiated grievance procedure.  We therefore find that the
 Agency has failed to establish that the Arbitrator's determination that
 the grievance was arbitrable is deficient under the Statute.
 
    Additionally, we find that the Agency's arguments in support of this
 exception constitute nothing more than disagreement with the
 Arbitrator's interpretation and application of the parties' agreement.
 We have consistently held that such disagreement provides no basis for
 finding an award deficient.  See U.S. Army Corps of Engineers, Kansas
 City District and National Federation of Federal Employees, Local 29, 22
 FLRA No. 15 (1986).  Moreover, the issue in dispute, as agreed to by the
 parties, concerned asserted arbitrary action on the part of the Agency.
 The Arbitrator found that the Agency had acted arbitrarily and ordered a
 remedy for such conduct.  The Agency has not demonstrated how the cited
 laws and regulations would preclude the Arbitrator from making such a
 determination or from remedying such conduct.  See Northeastern Program
 Service Center, Office of Program Service Centers, Social Security
 Administration and American Federation of Government Employees, Local
 1760, 7 FLRA 747 (1982).
 
    We also find that the Agency's second exception that the Arbitrator
 failed to apply the appropriate standard in determining the Government's
 liability, does not present a basis for finding the award deficient.
 Unless a specific standard of proof or review is required, which has not
 been demonstrated by the Agency here, an arbitrator may establish
 whatever standard the arbitrator considers appropriate and the award
 will not be found deficient on this basis.  See United States Customs
 Service and National Treasury Employees Union, 22 FLRA No. 68 (1986),
 slip op. at 3, and cases cited therein.
 
    We find that the Agency's argument in support of its third exception
 that the award improperly applies to employees outside the bargaining
 unit establishes that the award is deficient in part.  We have
 determined that an arbitrator exceeds his or her authority by failing to
 confine a remedy to bargaining unit employees.  See U.S. Department of
 Housing and Urban Development and American Federation of Government
 Employees, Local No. 3412, 24 FLRA No. 47 (1986).  Here, the remedy
 properly should apply only to those grievants who were in the bargaining
 unit at the time of the events giving rise to the grievance.  Therefore,
 the Arbitrator's award shall be modified to apply to those grievants who
 were in the bargaining unit at the time of the May 1982 rental increase.
  However, we find that the Agency's further argument in support of this
 exception is without merit.  The award is not deficient to the extent
 that it applies to bargaining unit employees who may not have requested
 reappraisals or appealed the rental increase.  The matter in dispute
 before the Arbitrator concerned arbitrary action on the part of the
 Agency with respect to the grievants.  The remedy appropriately covers
 those bargaining unit employees who were subject to such arbitrary
 action.
 
                               V.  DECISION
 
    Accordingly, the award is modified to provide as follows:
 
          (A)ll monies collected pursuant to the