32:0934(133)AR - - Treasury, Bureau of Alcohol, Tobacco and Firearms and NTEU - - 1988 FLRAdec AR - - v32 p934
[ v32 p934 ]
The decision of the Authority follows:
32 FLRA No. 133
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE TREASURY, BUREAU
OF ALCOHOL, TOBACCO AND FIREARMS
NATIONAL TREASURY EMPLOYEES UNION
Case No. 0-AR-1512
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Nicholas H. Zumas filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
Based on the Arbitrator's construction of a provision of the parties' collective bargaining agreement, the award requires the Agency to give employees who attend specified training at the Federal Law Enforcement Training Center (FLETC) the choice of residing in off-site housing with full reimbursement. The provision states that when on-site housing is made available to employees, employees will have the option, except in unusual circumstances, of residing in off-site housing at the full reimbursement rate rather than in the on-site housing provided.
The Agency excepts to the award on the ground that it interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and conflicts with a Government-wide regulation within the meaning of section 7117(a)(1).
For the reasons stated below, we conclude that the Agency's exceptions are without merit and must be denied.
The parties' agreement provides that when the Agency makes housing available to an employee who is attending training, "the employee will have the option, except in unusual circumstances, of remaining in the Employer-provided [on-site] housing or of securing other [off-site] housing" at normal reimbursement rates. Award at 5. The agreement specifies that "unusual circumstances" are present if, among other things, "the utilization of quarters furnished by the Employer is a necessary and integral part of the particular mission or training course." Id. The agreement also states that "[u]nusual circumstances sufficient to justify requiring an employee to use Employer-provided facilities are not present when an ordinary benefit to the Government, such as economy or the ready availability of personnel is the rationale." Id.
The Agency schedules the training involved in this case at FLETC, which is also part of the Department of the Treasury. FLETC has a requirement that trainees must reside on-site unless space is unavailable. In 1980, FLETC issued a directive which "reaffirm[ed] the longstanding policy . . . that living quarters . . . will be provided to students in training" and stated that "[a]ny exception to this policy must be approved by the Director or Deputy Director." Exceptions, Attachment 3 at 3.
The "documented rationale" for the FLETC requirement is "to intensify the law enforcement training experience and facilitate the movement of trainees" at the Center. Award at 3. The Agency and the Union agree that as to training for the Agency's regulatory employees who are represented by the Union, "these factors are not relevant and that the training class can be satisfactorily completed without residence at FLETC." Id. at 3-4.
Before 1987, the Agency's approach as to the FLETC policy was to inform trainees of FLETC's housing requirement. If a trainee did not accept that arrangement, the Agency paid the minimum per diem (that is, it did not pay for alternative housing). The Arbitrator found that "FLETC did not raise objection to this approach." Id.
In 1986, an employee grieved the Agency's failure to pay the full reimbursement rate when he resided off-site while undergoing training at FLETC. The matter was submitted to arbitration. In January 1987, the arbitrator awarded the employee the full reimbursement rate. The arbitrator concluded that the Agency's practice of paying the minimum per diem rate to employees refusing the on-site housing and FLETC's lack of objection to this approach constituted "de facto approval of off-site housing, and a concession of the absence of a necessity for on-site housing." Id.
Following the issuance of that award, the Agency issued a new policy statement informing prospective trainees that residence in FLETC housing is required by FLETC rule and that in order to meet this requirement, trainees must register at FLETC and accept a room assignment. In addition, on April 13, 1987, the Chief of the FLETC Planning and Allocation Staff issued a memorandum to contract registration personnel. The memorandum stated in part: "When you learn that a student [who is receiving training] intends to reside off the Center when housing is available on the Center, you are to contact me immediately unless you have been notified by my office that the student has been approved for off-Center housing." Exceptions, Attachment 10. The Director of FLETC also issued a memorandum on April 13, 1987, which stated in part that "[a]ppropriate Center directives are being revised to clarify the policy . . . and establish criteria for exceptions or granting of waivers." Id.
The Union then filed a grievance alleging that the Agency's change in policy violated the parties' contract and constituted a refusal to comply with the prior arbitration award. The Agency denied the grievance and the matter proceeded to arbitration.
III. Arbitrator's Award
The Arbitrator stated that based on the parties' submissions, the issues to be decided were: (1) whether the use of Government-provided housing is a necessary and integral part of the training class at FLETC; (2) whether the Agency is in compliance with the prior arbitration award. Award at 2-3.
The Arbitrator sustained the grievance. He ruled that "the primary issue must be resolved in the Union's favor because residence in FLETC housing is not 'necessary and integral' to the particular training course at issue." Id. at 8. The Arbitrator rejected the Agency's argument that the FLETC residency rule provides the "unusual circumstances" which are required under the agreement to support a denial of the employee option to reside off-site. He concluded, in agreement with the Union, that the "natural meaning of the 'necessary and integral' language [of the contractual provision] is that government lodging is a necessary element of the training itself." Id. at 9.
The Arbitrator also stated that "with respect to [the Agency's] regulatory personnel, FLETC's sole concern in applying its on-site residency rule is to receive housing fees. There has been no suggestion that participation in training has been or will be denied [by FLETC] to employees refusing to agree to live on-site." Id. at 10. The Arbitrator noted that the FLETC on-site residency requirement is related to economy, a matter specifically excluded under the contractual provision as an unusual circumstance justifying an exception to the employee option. Based on these findings, the Arbitrator found it unnecessary to rule on the second issue concerning whether the Agency was in compliance with the prior arbitration award.
As his award, the Arbitrator stated:
The grievance is sustained. According to the terms of . . . the agreement, ATF employees assigned to the interview techniques training at the FLETC must be afforded the choice of obtaining alternate housing with full reimbursement under government travel regulations.
IV. Positions of the Parties
The Agency contends that the award is contrary to law, rule, and regulation. The Agency asserts that the award interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because it restricts management's right to decide where to hold training. According to the Agency, compliance with the Arbitrator's award would preclude the Agency from conducting training at FLETC because of the FLETC rule requiring employees to reside on-site while undergoing training. Exceptions at 9. The Agency disputes the Arbitrator's statement (at 10 of his award) that "[t]here has been no suggestion that participation in training has been or will be denied [by FLETC] to employees refusing to agree to live on-site." According to the Agency, "all of the evidence indicates that if [the Agency] refuses or is unable to comply with FLETC's on-site housing requirement, it will not be able to conduct training at the Center." Exceptions at 14.
Alternatively, the Agency argues that "if the award is interpreted to allow the agency to continue to conduct training at FLETC, but to nonetheless allow employees to reside off-site, the award conflicts with FLETC's rule which requires students to reside on-site." Id. at 10. The Agency contends that the FLETC rule is a Government-wide rule under section 7117(a)(1) of the Statute and that the award is, therefore, deficient.
The Union argues that the Agency's first assertion, claiming a violation of the Agency's right to assign work, simply constitutes disagreement with the Arbitrator's findings of fact. The Union asserts that "[f]undamental to [the Agency's] claim is the assumption that the award prevents [the Agency] from using FLETC. However, the award states no such thing." Opposition at 4. According to the Union, "the arbitrator's conclusion that FLETC has in the past and will continue to provide training to those who lodge off-base explicitly allows [the Agency] to select FLETC as the location for the courses in question." Id. at 4-5.
The Union contends that the Agency's second assertion, claiming that the FLETC rule is a Government-wide rule and that the award conflicts with that rule, also provides no basis for review of the award. The Union notes that in the Agency's reply brief to the Arbitrator, the Agency stated that it "does not disagree" with the Union's position that the FLETC rule is not a Government-wide rule or regulation. Id. at 6. The Union also contends that the Agency's argument is contrary to the Authority's decision in National Treasury Employees Union and Department of the Treasury and U.S. Customs Service, 31 FLRA 181 (1988) (Proposals 2 and 3), petition for review filed sub nom. Department of the Treasury, United States Customs Service v. FLRA, No. 88-1308 (D.C. Cir. Apr. 21, 1988). In that case, the Authority determined that the same FLETC directive involved in this case does not constitute a Government-wide rule or regulation within the meaning of section 7117(a)(1) of the Statute.
We conclude that the Agency has not established that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute.
As to the Agency's first assertion, we find that the Arbitrator's award does not violate management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency asserts that FLETC will not permit training for employees who choose to reside off-site and, therefore, that the award restricts the Agency's right to decide to conduct training there. However, as the Union notes, this argument is based on a contention of fact which is contrary to the Arbitrator's findings of fact.
Based on the record before him, the Arbitrator found nothing to suggest that "participation in training has been or will be denied [by FLETC] to employees refusing to agree to live on-site." Award at 10. The FLETC directive and memoranda discussed above (Attachments 3 and 10 to the Agency's Exceptions) do not state that training will be denied in the circumstances alleged by the Agency. Additionally, the directive and memoranda note that exceptions and waivers to the FLETC policy can be granted by appropriate FLETC officials.
The Agency's contention is based on a disagreement with the Arbitrator's findings of fact. A party's disagreement with an arbitrator's findings of fact does not provide a basis under section 7122(a) to overturn an arbitrator's award. See, for example, Metropolitan Correctional Center and American Federation of Government Employees, Local 3652, 31 FLRA 1059 (1988) (exceptions which constitute nothing more than disagreement with the arbitrator's findings of fact provide no basis for finding the award deficient). Because the Arbitrator made a factual finding that the Agency is not prevented from conducting training at FLETC for employees who reside off-site, we have no basis on which to conclude that the award restricts management's ability to decide where to hold training.
The Agency's second assertion also provides no basis for finding the award deficient. As noted by the Union, we concluded in U.S. Customs Service, 31 FLRA at 196-97, that the same FLETC directive which is involved in this case does not constitute a Government-wide rule or regulation within the meaning of section 7117(a)(1) of the Statute. Therefore, based on the rationale contained in <