29:0240(23)AR OEA VS DOD, DODDS



[ v29 p240 ]
29:0240(23)AR
The decision of the Authority follows:


29 FLRA NO. 23


OVERSEAS EDUCATION ASSOCIATION

                    Union

      and

DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS

                    Agency

Case Nos. 0-AR-1310
          0-AR-1316

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Stuart R. Waters filed by the Union, in Case No. 0-AR-1310, and the Agency, in Case No. 0-AR-1316, under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievant moved to Fulda, West Germany, with her spouse and children in 1981, in connection with her spouse's recruitment from the United States to a Department of Defense position in Fulda. The recruitment package included an allowance for housing expenses in lieu of government housing (a living quarters allowance or LQA). The package also included provision for the expenses of returning the recruit, his dependents, and household goods to the place of recruitment at the end of the appointment (a transportation agreement). In July 1984, the grievant's spouse was removed from his position. In connection with his removal, he was advised that his entitlement to a LQA and return travel under his transportation agreement would expire on October 6, 1984. He appealed his removal to the Merit Systems Protection Board (MSPB) and decided to remain in Germany beyond October 6 to await the results of his appeal. MSPB upheld his removal in November 1984, and in January 1985 he departed the area permanently and returned to the United States without the grievant. 

During this time, the grievant was appointed in August 1984, to a temporary teaching position at an Agency school in Fulda for a period not to exceed June 15, 1985. On June 1, 1985, she was appointed to a permanent position at the school. Also during this time, the grievant initiated several requests for a LQA in her own behalf and a transportation agreement to return her, her children, and household goods back to the United States on termination of her employment. The advice she received, and her spouse received before he departed, from the personnel office was confusing and contradictory. The Arbitrator first noted that the grievant and her spouse were never informed until after her spouse departed permanently for the United States that he could have applied for a delay of up to 2 years in the expiration of his transportation agreement. He noted that both the grievant and her spouse were separately advised by the personnel office in January 1985, after her spouse's transportation agreement had expired but before he returned to the United States, that the grievant would be eligible for both a transportation agreement and a LQA as soon as he departed. After her spouse departed, the grievant was then advised that she would not be eligible until she became a permanent employee. After accepting a permanent appointment, she was advised on June 3, 1985, that she was eligible for both a transportation agreement and a LQA. On June 7 she was told she was not eligible for a LQA, but was eligible for a transportation agreement which she signed. She was later advised that the granting of a transportation agreement was a mistake and that as a locally hired employee, she failed to meet the eligibility requirements of governing regulations for a LQA and for a return transportation agreement. She filed a grievance disputing the denials which was submitted to arbitration.

As an initial matter, the Arbitrator noted that the parties were unable to agree on a statement of the issue. Consequently, in accordance with the parties' collective bargaining agreement, each party submitted a statement of the issue, and the Arbitrator determined the issue to be resolved. The Union framed the issue as follows: "Should the Grievant be given Living Quarters Allowance and Renewal Agreement Travel as of June 1, 1985?" The Activity framed the issue as follows: "Was the decision not to grant Grievant Living Quarters Allowance (LQA) and a transportation agreement in violation of regulation?" The Arbitrator ruled that the issue to be resolved was as stated by the Activity: "Was the decision not to grant Grievant Living Quarters Allowance (LQA) and a transportation agreement in violation of regulation?" 

The Arbitrator concluded that the decision not to grant the grievant a LQA and a transportation agreement was not in violation of regulation. Under governing regulations pertaining to LQA, the Arbitrator determined that the grievant was never able to gain eligibility for a LQA in her own behalf. Under governing regulations pertaining to transportation agreements, the Arbitrator determined that the grievant was not eligible once her spouse had departed for the United States.

However, the Arbitrator ruled that the grievant was entitled to a return transportation agreement on the basis of the doctrine of equitable estoppel. In view of the positions taken by the grievant as the result of misinformation furnished her and her spouse and the failure to fully advise her and her spouse, the Arbitrator concluded that the Agency should not be permitted to, in effect, "strand" the grievant and her children in West Germany. To the Arbitrator, the granting of a transportation agreement would place the grievant in the position she was in when she arrived in West Germany. However, he concluded that none of these considerations applied to the denial of a LQA, and he ruled that equitable estoppel did not operate to restore a LQA to the grievant.

Accordingly, the Arbitrator issued in pertinent part the following award:

(a) (The grievant) is denied (a transportation agreement) on the basis of the applicable regulations, but is granted (a transportation agreement) on the basis of equitable estoppel, retroactive to June 1, 1985.

(b) (The grievant) is denied LQA on the basis of applicable regulations.

(c) (The grievant) is awarded attorney fees and costs which she might have incurred, pursuant to the provisions of 5 U.S.C. 5566(b).

III. Agency's First Exception

A. Contentions

The Agency contends that the Arbitrator exceeded his authority when he awarded a transportation agreement to the grievant on the basis of the doctrine of equitable estoppel. The Agency maintains that the Arbitrator clearly resolved the submitted issue as he framed it when he answered "'(n)o,' the decision was not in violation of regulation." Consequently, the Agency argues that the Arbitrator exceeded his authority when he considered whether the grievant may have been entitled to LQA or a transportation agreement on some other basis. The Union disagrees.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the Arbitrator exceeded his authority by deciding an issue not submitted. As noted, the parties were unable to agree on a statement of the issue and the Arbitrator determined the issue to be resolved. The Arbitrator determined that the issue to be resolved was as stated by the Activity: "Was the decision not to grant Grievant Living Quarters Allowance (LQA) and a transportation agreement in violation of regulation?" As his award in this regard, the Arbitrator ruled that the grievant "is denied (a transportation agreement) on the basis of the applicable regulations, but is granted (a transportation agreement) on the basis of equitable estoppel." In our view, the award and remedy of the Arbitrator in this respect is not in excess of his authority.

In Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL - CIO. Local 2429, 24 FLRA No. 58 (1987), we stated that, like the Federal courts, we will accord an arbitrator's formulation of the issue submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement. Slip op. at 3. We further indicated that also like the Federal courts, we will permit an arbitrator to extend the award to issues that necessarily arise from the arbitrator's formulation of the issues submitted in absence of a stipulation. Slip op. at 4.

We conclude that the Agency in its exception is essentially disagreeing with the Arbitrator's extension of his formulated issue to the issue of equitable estoppel. In spite of the Arbitrator's determining that the issue was as stated by the Activity rather than the Union, we find that in the circumstances of this case, the issue of equitable estoppel necessarily arises from the issue of whether the grievant was entitled to a transportation agreement under applicable regulations. Thus, this exception provides no basis for finding the award deficient. 

IV. Agency's Second Exception

A. Contentions

The Agency contends that the award of a transportation agreement on the basis of equitable estoppel is contrary to law. The Agency claims that equitable estoppel is not available against the Government and that consequently the award is deficient. The Union disputes the Agency's contention that equitable estoppel is not available against the Government.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to law. In Bureau of Indian Affairs and National Federation of Federal Employees Local 243, 25 FLRA No. 74 (1987), the arbitrator determined that the agency had acted arbitrarily by failing to rescind a rent increase for one group of employees when it had rescinded the increase for another group of employees, and the arbitrator ordered the rent increase refunded. As one of its exceptions, the agency maintained that the arbitrator had held the Government liable for rent refunds on equitable principles and claimed that the principle of equitable estoppel is not available against the Government as it is against a private litigant. We denied the exception finding that the standard by which the arbitrator held the Government liable for the rent refund provided no basis on which to find the award deficient.

In this case we find that the Agency's exception similarly provides no basis for finding the award of a transportation agreement on the basis of equitable estoppel deficient. In particular, the Agency fails to substantiate as claimed that equitable estoppel is not available against the Government. Instead, the exception constitutes nothing more than disagreement with the Arbitrator's reasoning and conclusions based on the evidence and testimony presented and such disagreement provides no basis for finding the award contrary to law as alleged. See, for example, General Accounting Office and General Accounting Office Personnel Appeals Board, 698 F.2d 516, 526 n.57 (D.C. Cir. 1983).

V. Agency's Third Exception

A. Contentions

The Agency contends that the award of attorney fees is contrary to the Back Pay Act, 5 U.S.C. 5596, because the Arbitrator did not set forth a fully articulated finding on all pertinent statutory requirements. 

B. Analysis and Conclusions

We agree. The Authority has repeatedly held that an award of attorney fees under the Back Pay Act requires a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement. For example, Local 1749, American Federation of Government Employees and Commander, 47 FTW, Laughlin Air Force Base, Texas, 24 FLRA No. 15 (1987). In addition, in National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA No. 26 (1986), the Authority explicitly stated that in future cases, an award granting attorney fees without the required support will be found deficient and will be set aside or modified as appropriate. In this case, the Arbitrator awarded attorney fees without the proper support and the award will be modified to strike the provision for attorney fees.

VI. Union's First Exception

A. Contentions

The Union contends that the Arbitrator's denial of a LQA and a transportation agreement under governing regulations is contrary to those regulations.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient as alleged.

In ruling that the decision not to grant a LQA and transportation agreement to the grievant was not in violation of regulation, the Arbitrator carefully considered the interpretation and application of governing regulations to the factual situation of the grievant. As a result, he determined that the grievant was never able to gain eligibility under these regulations for a LQA in her own behalf and that there was no regulatory authority for granting the grievant a return transportation agreement. In its exceptions, the Union fails to establish otherwise. Instead, the Union is merely attempting to relitigate this matter before the Authority which provides no support for its exception that the award is