32:1168(156)AR - - Patent and Trademark Office and Patent Office Professional Association - - 1988 FLRAdec AR - - v32 p1168



[ v32 p1168 ]
32:1168(156)AR
The decision of the Authority follows:


32 FLRA No. 156

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

U.S. PATENT AND TRADEMARK OFFICE
Agency

and

PATENT OFFICE PROFESSIONAL ASSOCIATION
Union

 Case No. 0-AR-1508

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Robert Bennet Lubic filed by the Agency and the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. Both parties filed oppositions.

The Agency excepts to the Award of Arbitrator Lubic on three grounds: (1) the Arbitrator erred by not considering the applicability of GSA Temporary Regulation D-73; (2) the award was based on a nonfact; and (3) the Arbitrator exceeded his authority. The Union excepts to the Award of Arbitrator Lubic on two grounds: (1) Arbitrator Lubic allowed the Agency to collaterally attack an interest arbitration award to which no timely exceptions had been filed; and (2) the award was inconsistent with Government-wide regulations.

For the reasons discussed below, we conclude that neither party has established that Arbitrator Lubic's Award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, both parties' exceptions are denied.

II. Background

The Union represents a bargaining unit of approximately 1500 professionals, of whom about 1400 are patent examiners. On May 17, 1981, while negotiating for a new collective bargaining agreement, the Union submitted a proposal on the impact and implementation of a proposed reallocation of office space by the Agency. Subsequently, a Memorandum of Understanding (Memorandum or MOU) was signed by the parties on December 2, 1982, which provided that "'[e]ach professional will be provided with a private, wall enclosed * * * office of approximately 150 square feet whenever possible.'" (underlining added) Interim Decision of Arbitrator Lubic at 2. An addendum was attached to the Memorandum as the subject for further negotiations which stated that GS-15, 14, and 13 examiners "'shall first be provided with private offices.'" Id.

During subsequent negotiations, the parties could not reach agreement as to the binding effect of the Memorandum and its addendum. The Union sought assistance from the Federal Service Impasses Panel (FSIP) to resolve their dispute. Jerome Ross was selected as mediator-arbitrator to resolve the unsettled issues. In his decision of November 30, 1983, Arbitrator Ross ruled in part that "'all examiners and classifiers, grades 13, 14 and 15 shall be provided with private offices of approximately 150 square feet'" and that the award "'shall be incorporated into the parties next basic agreement.'" Interim Decision at 2-3.

Arbitrator Ross' award did not encompass the Memorandum. However, on June 21, 1985, the Authority found that the Memorandum became a binding agreement on January 1, 1983, by operation of section 7114(c)(3) of the Statute. U.S. Patent and Trademark Office and Patent Office Professional Association, 18 FLRA 713 (1985).

The parties continued negotiations for a collective bargaining agreement after the Ross award. When they were unable to reach agreement, they took the matter to FSIP for resolution. Mediator-Arbitrator Marvin Johnson was selected to resolve the impasse. As part of his award, Arbitrator Johnson ordered the parties to give effect to the Memorandum and the Ross award. His award constituted the parties' collective bargaining agreement, which became effective on July 1, 1986.

After informal attempts to resolve the office space issue, the Union filed a formal grievance on March 27, 1987. This grievance was denied by the Agency. Arbitrator Robert Bennet Lubic was selected to resolve the dispute. A hearing was held before him on September 3 and 4, 1987.

Arbitrator Lubic issued an interim decision because he was uncertain as to whether the Agency could fulfill the requirements of the pertinent language of the Ross award and the Memorandum in light of GSA directives. According to Arbitrator Lubic, the parties failed to provide him with necessary evidence such as floor plans, space requirements contained in other collective bargaining agreements, relevant building codes, and lease and safety requirements. Arbitrator Lubic established specific time frames for the parties to supply the evidence requested, and to make a final attempt to resolve their differences. If either or both parties failed to pursue the matter as directed, the Arbitrator indicated that he would render a final and binding decision "based in part on his determination as to the burdens of proof and failure to meet the same." Interim Decision at 31.

The Agency filed an exception with the Authority to the interim award. This exception was dismissed as an interlocutory appeal to an award which was not final. U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 572 (1988).

III. Arbitrator's Award

The parties did not submit the evidence as requested in the Interim Decision. Arbitrator Lubic, therefore, formulated his final award based on the evidence before him.

The issues before Arbitrator Lubic remained those set forth in the Interim Decision: (1) whether the Agency complied with the decision of Arbitrator Ross regarding private office space for Patent Examiners grades GS-13, 14, and 15, as incorporated in the parties' collective bargaining agreement; and (2) whether the Agency complied with the Memorandum of Understanding (Memorandum) of December 2, 1982, concerning private office space for professionals, as incorporated in the parties' collective bargaining agreement.

The first issue to be resolved by Arbitrator Lubic was whether the Agency complied with the decision of Arbitrator Ross (the Ross award), which provided that all examiners and classifiers, grades 13, 14 and 15, shall be provided with private offices of approximately 150 square feet. Arbitrator Lubic noted that the initial burden of presenting evidence to prove that the Agency failed to comply with the requirements of Arbitrator Ross' award rested with the Union. The Arbitrator found that the Union met its burden of proof by presenting evidence "that there are 25 or so GS-13 patent examiners who presently lack the requisite office space as mandated by the Ross award." Award at 5. Therefore, the Arbitrator determined that the burden of proof shifted to the Agency.

Before the Arbitrator, the Agency questioned whether it could conform with Arbitrator Ross's order that all examiners and classifiers, grades 13, 14 and 15, shall be provided with private offices of approximately 150 square feet and with GSA Temporary Regulations D-70 and D-71. These regulations establish a goal of an average space utilization of 135 square feet per person. The Arbitrator concluded that the Agency had "bargained for the Ross award" and, therefore, was required to provide the office space specified in that award. Id. at 7.

The next issue before Arbitrator Lubic was whether the Agency complied with the Memorandum of December 2, 1982, which was incorporated into the agreement. The Memorandum required that all professional employees be provided with private offices of 150 square feet, whenever possible.

The Arbitrator indicated that both parties agreed "that the heart of the dispute as to the application of the MOU in this matter, lies within the definition of the terms 'whenever possible' as contained in the contractual language." Id. at 7. The Arbitrator found that the terms "whenever possible," meant "whatever capably can or may be done under the circumstances." Id. at 8. According to the Arbitrator "the question becomes one of what is capable of being done by Management in providing all of POPA's professionals with private offices of approximately 150 square feet." Id. The Arbitrator determined that the question of what capably can or may be done must be determined within the "scope of the agency's present floor plan as affected by certain outside factors." Id.

Arbitrator Lubic found that the Union had presented only general mathematical arguments to indicate how such space could be provided. He concluded that the Union's arguments were conjectural and not sufficient to meet the Union's initial burden of proof. Id. at 10.

The Arbitrator found that GSA Temporary Regulation D-71 superseded Regulation D-70, and that Regulation D-71 was applicable to this case. Regulation D-71 provides that Federal agencies must achieve a goal for office space utilization of 135 square feet by 1990. The Arbitrator concluded that the Agency could not comply with GSA Temporary Regulation D-71 and at the same time provide offices of 150 square feet to all professional employees in the Association. He noted that "Arbitrator Johnson was aware of these regulations when he drafted his interest arbitration award which culminated in the Bargaining Agreement and therefore, it must be assumed, adopted the language of the MOU with the GSA regulations in mind." Id. at 11.

Therefore, the Arbitrator found that: "POPA has failed to meet its initial burden of proof in regard to the allegation that it is possible for the Agency to comply with the language of the MOU of December 2, 1982. As a result, the Arbitrator finds that the PTO is not in violation of the terms of the Memorandum or Article 16, Section 1 A, of the Bargaining Agreement." Id. at 11-12.

The Arbitrator found that because the Agency had not filed exceptions to Arbitrator Johnson's interest arbitration award, which required the Agency to give effect to the Ross award, it could not object now to that award. The Arbitrator went on to conclude that "there is nothing to preclude Management from collaterally attacking the application of the award if such application were to be considered inconsistent under section 7117(a)(1) of the Civil Service Reform Act of 1978 with any 'Government-wide rule or regulation.'" Id. at 9.

As his award, Arbitrator Lubic determined that: (1) the Agency shall comply with the terms of the Ross award within 3 months of the day of receipt of the award, by providing private office space of approximately 150 square feet for all Patent Examiners above the grade of GS-12 presently sharing office space and for those subsequently promoted beyond grade GS-12; (2) the Agency must re-evaluate the performance of all Patent Examiners above the grade GS-12 who were sharing offices, to take into account work interruptions due to conversations during 7 percent of total working time; (3) the Agency had not violated the Memorandum of 1982, as incorporated as Article 16, Section 1A of the Bargaining agreement; (4) in view of the split decision, he would not grant the Union's request for attorney fees and costs; and (5) because his ruling in this award was clear and simple in application, the Union's request for the

Arbitrator to retain jurisdiction over this matter, to monitor compliance, was denied.

IV. Agency's First Exception

A. Positions of the Parties

The Agency contends that Arbitrator Lubic improperly refused to consider the applicability of GSA Temporary Regulation D-73 to this case. Temporary Regulation D-73 superseded Temporary Regulation D-71. Temporary Regulation D-73 establishes a goal of achievement of space utilization rate of 135 square feet per employee by 1990, which does not include supplemental space.

The Agency acknowledges that the outcome of this case may not be materially affected by Temporary Regulation D-73. The Agency argues, however, that the Arbitrator's ruling may have "significant adverse consequences if left to stand as precedent that the agency is precluded from considering any subsequent regulations until a new agreement comes into effect." Agency's Exception at 6.

The Agency contends that Temporary Regulation D-73 is relevant to whether the Agency is able to provide office space. The Agency asserts that Temporary Regulation D-73 does not contradict the terms of the collective bargaining agreement. The Agency argues that because Arbitrator Lubic failed to specifically find that the regulation contradicted the terms of the collective bargaining agreement, he improperly refused to consider the applicability of the regulation.

The Union argues that the Agency's first exception must be dismissed because it constitutes a request for an advisory opinion from the Authority, and the Authority does not render advisory opinions. The Union notes that the Agency conceded that the outcome of this case may not be materially affected by consideration of Temporary Regulation D-73, but that the Arbitrator's ruling could have significant adverse consequences if it is left to stand as precedent. The Union also argues that Arbitrator Lubic's ruling--refusing to consider Temporary Regulation D-73--was proper according to section 7116(a)(7) of the Statute. The Union claims that subsequently issued regulations cannot negate rights under the terms of an already existing collective bargaining agreement.

B. Analysis and Conclusion

The Arbitrator Properly Refused to Consider GSA Temporary Regulation D-73

The Agency has failed to establish that the Arbitrator erred when he did not consider the applicability of GSA Temporary Regulation D-73 to this dispute. We find that Arbitrator Lubic's refusal to consider the applicability of the regulation was proper. The Arbitrator found that GSA Temporary Regulation D-73 was issued after Arbitrator Johnson's award, which ultimately was included in the parties' agreement. Once a collective bargaining agreement becomes effective, subsequently issued rules and regulations, with the exception of Government-wide rules or regulations issued under 5 U.S.C. § 2302 (relating to prohibited personnel practices), cannot nullify the agreement's terms. See International Plate Printers and Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 115 (1987); and National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983, 985 (1982). Therefore, the Arbitrator's refusal to consider the applicability of the regulation was in accordance with established precedent.

In addition, the Agency argues that the Arbitrator's refusal to consider the applicability of the regulation is not supported by the necessary findings of facts, specifically that the subsequently issued regulation contradicted the terms of the collective bargaining agreement. We disagree.

Failure by an arbitrator to make specific findings of fact does not provide a basis for finding an award deficient. See General Services Administration and American Federation of Government Employees, Local 1733, 12 FLRA 194 (1983) (General Services Administration); See also Wissman v. Social Security Administration, 848 F.2d 176 (Fed. Cir. 1988). Compare U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 375, 378 (1988) (An award of attorney fees must be based on a fully articulated, reasoned decision which sets forth the specific findings supporting the determination regarding each pertinent statutory requirement, including the basis for the reasonableness of the amount awarded.). Therefore, the Agency's first exception is denied.

V. Agency's Second and Third Exceptions

A. Positions of the Parties

The Agency argues that Arbitrator Lubic's remedy that the Agency re-evaluate the annual performance of every Patent Examiner with a grade above GS-12 who shared office space in violation of the agreement was based on a nonfact and was without any evidentiary support. The Agency further contends that the Arbitrator did not make findings of fact to support his conclusion. The Agency also claims that the Arbitrator exceeded his authority by deciding an issue not before him. The Agency contends that the issue of whether the performance appraisals of employees sharing offices was affected by conversations which occurred during 7 percent of the total work time was not presented to the Arbitrator.

The Union argues that the Agency's exceptions should be dismissed because they constitute disagreement with the Arbitrator's findings of facts based on the evidence presented at the hearing, and with his reasonings and conclusions.

The Union asserts that it introduced evidence to support its position that the performance of employees who shared offices was affected by sharing office space. The Union indicates that it requested a remedy that "PTO Management shall re-evaluate the annual performance of any professional employee who has shared office space during the life of this agreement with instructions that Management consider that these employees were interrupted by conversations for 7% of their working time." Union's Opposition at 15. Thus, the Union argues that the request for a "remedy for the effect of sharing office space on employees' performance appraisals" was known to the Agency from the onset of the grievance process and was before the Arbitrator. Id.

B. Analysis and Conclusion

One of the issues before the Arbitrator was whether the Agency violated the terms of the Ross award, as incorporated in the agreement. In the grievance and at the hearing, the Union requested several remedies if the Arbitrator found that the Agency violated the agreement. One of the requested remedies was to: "Make whole those professionals whose performance appraisals have been adversely affected by being doubled up." Union's Opposition, Attachment 2. The Union asserts that it also requested, in a post hearing brief, that "PTO Management shall re-evaluate the Annual performance of any professional employee who has shared office space during the life of this agreement with instructions that Management consider that these employees were interrupted by conversations for 7% of their working time." Union's Opposition at 15.

The Agency neither excepts to the portion of Arbitrator Lubic's Award which found that the Agency violated the Ross Award, as incorporated into the collective bargaining agreement, nor does the Agency assert that the portion of the agreement regarding office space is contrary to any law, rule or regulation. Thus, we do not have before us a case where an agency asserts that a proposal or collective bargaining provision concerning office space selection interferes with its right under section 7106(b)(1) to determine the technology, methods and means of accomplishing its work. We have found that proposals and collective bargaining provisions concerning office space selection are negotiable unless the agency demonstrates that its choice of space design has a technological relationship to the accomplishment and furtherance of its work, and that the proposal would interfere with the purpose for which space design was adopted. See National Treasury Employees Union and Department of Health and Human Services, Family Support Administration, 28 FLRA 1108 (1987).

The Agency's exception is directed toward the remedy awarded by Arbitrator Lubic after finding that the Agency violated the Ross Award, as incorporated in the collective bargaining agreement.

The Agency concedes that the Union requested that the Agency "[m]ake whole those professionals whose performance appraisals have been adversely affected by being doubled up." Agency's Exception at 9. In addition, the Agency indicates that the Union's counsel during his opening statement at the hearing requested that "appraisals be adjusted to reflect these disturbances" Agency's Exception at 10. Furthermore, the Agency notes that the Union introduced evidence of a management study which indicated that the percentage of time that an examiner spends in conferences is approximately 7 percent. According to the Agency, the Union's purpose in presenting this evidence was to show the importance of the private offices, and that "when concentration was broken it would adversely affect an employee's performance appraisal." Agency's Exception at 10.

The Agency, however, now argues that the part of the award which orders re-evaluation of the annual performance of employees is based on a nonfact and that the Arbitrator exceeded his authority by deciding an issue which was not presented to him, that is, whether the performance of employees who shared offices had been adversely affected by the lack of private office space.

1. The Award Is Not Based on a Nonfact

When a party contends that an arbitrator's award is deficient under the Statute because it is based on a nonfact, the party must demonstrate that the central fact underlying the award is concededly erroneous and is a gross mistake of fact, but for which a different result would have been reached. For example, U.S. Army Missile Command, Redstone Arsenal, Alabama and Local 1858, American Federation of Government Employees, AFL-CIO, 18 FLRA 374 (1985). See also U.S. Department of Labor and Local 12, American Federation of Government Employees, 24 FLRA 435 (1986).

The Agency contends that the Arbitrator both (1) improperly failed to make his own findings of fact and (2) "erroneously adopted" a mischaracterization of the evidence which was contained in the Union's post-hearing brief. Agency's Exceptions at 12. We reject these contentions. The fact that an arbitrator does not make a specific finding of fact to support his remedy does not make the award erroneous. As noted above in connection with the Agency's first exception, failure by an arbitrator to make specific findings of fact does not provide a basis for finding an award deficient. General Services Administration.

In addition, we find that the Agency's contention that the Arbitrator's remedy is not supported by the evidence does not constitute a proper basis for setting aside the award. The Arbitrator reviewed the evidence before him and arrived at his conclusions and remedies. The Agency's contention constitutes mere disagreement with the Arbitrator's evaluation of the evidence and testimony presented at the hearing, and with his reasonings and conclusions. See Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma, 30 FLRA 20 (1987). See also American Federation of Government Employees, Council 236 and General Services Administration, National Capital Region, 12 FLRA 236 (1983).

2. The Arbitrator Did Not Exceed His Authority

An award will be found to be in excess of the arbitrator's authority only when the arbitrator resolved an issue not submitted, or awarded relief to persons who did not file a grievance on their own behalf, or who did not have the Union file grievances for them. See National Center for Toxicological Research, Jefferson, Arkansas and American Federation of Government Employees, Local 3393, NCTR, Jefferson, Arkansas, 20 FLRA 692 (1985).

We conclude that Arbitrator Lubic did not exceed his authority--his award was directed to a remedy requested by the Union and the award was directly related to one of the issues before him.

The issue before Arbitrator Lubic was whether the Agency violated the terms of the Ross award, as incorporated in the agreement. The record reveals and the Agency concedes that the Union requested as a remedy, in the original grievance and at the hearing before the Arbitrator, that employees who shared offices be made whole. Agency's Exception's at 9-10. The Arbitrator concluded, based on the evidence presented to him, that the Agency violated the terms of the Ross award. After finding a violation of the Ross award, and in response to one of the remedies requested by the Union, Arbitrator Lubic directed the Agency to reevaluate the performance appraisals of those employees who shared office space in violation of the agreement.

Arbitrators have considerable latitude in fashioning remedies. See U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Lexington, Kentucky and American Federation of Government Employees, Local 817, 21 FLRA 927 (1986). We find that the part of the award concerning Arbitrator Lubic's order to re-evaluate the performance of affected employees is directly responsive to and properly confined to an issue before him and to his decision that the Agency violated the provisions of the Ross award, as incorporated into the agreement. See Social Security Administration and American Federation of Government Employees, Local 1336, 29 FLRA 225 (1987).

After determining that the Agency violated the Ross Award provision of the collective bargaining agreement, Arbitrator Lubic had to determine what the appropriate remedies should be for this violation. He concluded one appropriate remedy for the Agency's violation of the collective bargaining agreement was that the Agency must provide the required private office space. The Arbitrator also determined that an additional appropriate remedy was one requested by the Union--the Agency was required to re-evaluate patent examiners who shared office space in violation of the Ross Award to ascertain if their performance appraisals had been affected by this violation. Therefore, we conclude that the portion of the award requiring re-evaluation was directly related and confined to the determination that the Agency violated the Ross Award.

The section of the award concerning Arbitrator Lubic's order to re-evaluate the performance appraisals of affected employees is not outside the scope of the issues before the Arbitrator or otherwise in excess of his authority. See Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516 (1986) (where the Authority stated that it will accord an arbitrator's formulation of the issue submitted, in the absence of stipulation, the same substantial deference accorded an arbitrator's interpretation of the collective bargaining agreement, and it will permit an arbitrator to extend the award to issues that necessarily arise from the arbitrator's formulation of the issues submitted in the absence of stipulation). See also The United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Fort Worth, Texas and American Federation of Government Employees, Council of Prison Locals, Local Union 1298, 32 FLRA 128 (1988). Arbitrator Lubic's award was directly related to one of the remedies requested and to one of the issues presented to him.

We note that the remedy awarded by the Arbitrator only required the Agency to re-evaluate the employees who shared office space "to take into account" work interruptions due to conversations during 7 percent of total working time. The remedy does not in any way require the Agency to reach any particular results in conducting the re-evaluation.

In view of our conclusions, the Agency's second and third exceptions are denied.

VI. Union's First Exception

A. Positions of the Parties

The Union's first exception is directed towards Arbitrator Lubic's finding that the Union did not meet its burden of proving that the Agency violated the Memorandum. The Union contends that the Agency cannot in a grievance proceeding challenge a final and binding interest arbitration award. Thus, the Union argues that the award is inconsistent with law because the Arbitrator improperly allowed the Agency to collaterally attack a final and binding interest arbitration award to which no timely exceptions had been filed.

The Agency argues that the Union's exceptions mischaracterize the Arbitrator's award. The Agency notes that it has never argued that it could not comply with the contract or that compliance with the contract would be illegal. The Agency asserts that its only contention has been that it would be impossible to both accept the Union's interpretation of the agreement and comply with the regulation. Thus, the Agency contends that the Union's exceptions constitute disagreement with the Arbitrator's findings.

B. Analysis and Conclusions

The Agency's Exceptions Do Not Constitute a Collateral Attack to an Interest Arbitration Award

The Union first contends that the award is contrary to law because Arbitrator Lubic allowed the Agency to collaterally attack a final and binding interest arbitration award to which no timely exceptions had been filed. We disagree.

When a party does not file timely exceptions to an arbitration award, the award becomes final and binding and the Agency is obligated to take the actions required by the award. See Patent and Trademark Office and Patent Office Professional Association, 26 FLRA 295 (1987). The Union fails to recognize that Arbitrator Johnson's award became final and binding and also became part of the parties' collective bargaining agreement. Under section 7121(a)(1) of the Statute, any collective bargaining agreement shall provide procedures for the settlement of grievances. The present grievance arises under the parties' collective bargaining agreement, which includes the provisions of the Johnson interest arbitration award. The issue before the Arbitrator was whether the Agency could comply with the Union's interpretation of the part of the collective bargaining agreement referred to as the "memorandum" and applicable GSA Regulations.

The Union's claim that this grievance constitutes a collateral attack to the interest arbitration award is without merit. Arbitrator Johnson's interest arbitration award became part of the parties' collective bargaining agreement and the grievance involves the alleged failure by the Agency to implement the agreement. Arbitrator Lubic interpreted the agreement and concluded that the Agency had not violated the part of the agreement referred to as the "Memorandum." Therefore, the Union's contention actually constitutes disagreement with the Arbitrator's interpretation and application of the parties' agreement. Asserted errors in the interpretation and application of the parties' collective bargaining agreement by an arbitrator do not provide a basis to find an award deficient under the Statute. See Pension Benefit Guaranty Corporation and National Treasury Employees Union Chapter 211, 32 FLRA 141 (1988), petition for review filed as to other matters sub nom. United States Department of Justice, Bureau of Prisons v. FLRA, No. 88-1492 (D.C. Cir. July 8, 1988) (exceptions which constitute nothing more than disagreement with an arbitrator's interpretation of an agreement and reasonings and conclusions and an attempt to relitigate the merits of the grievance before the Authority provide no basis for finding an award deficient).

VII. Union's Second Exception

A. Positions of the Parties

The Union argues that Arbitrator Lubic's award is inconsistent with Government-wide regulations. It argues that the Arbitrator misinterpreted and misapplied GSA Temporary Regulation D-71. The Union asserts that to the extent that the Arbitrator held that the GSA Temporary Regulation D-71 had an impact on the Memorandum's requirement that all employees be given private offices, he misinterpreted and misapplied the regulation. This regulation provides that "the objective is to achieve, by the end of the fiscal year 1990, an average workstation space utilization rate of 135 square feet or less per person for both agency-controlled and GSA-controlled space." Union's Exception at 17. The Union argues that GSA regulat