36:0861(83)AR - - DODDS, Mediterranean Region and Overseas Federation of Teachers - - 1990 FLRAdec AR - - v36 p861



[ v36 p861 ]
36:0861(83)AR
The decision of the Authority follows:


36 FLRA No. 83

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

MEDITERRANEAN REGION

(Agency)

and

OVERSEAS FEDERATION OF TEACHERS

(Union)

0-AR-1746

DECISION

August 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Peter Florey filed by the Agency pursuant to 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 (DoDDS') exceptions.

The Arbitrator sustained the grievances of two employees who claimed entitlement to Living Quarters Allowance (LQA) and other related benefits following reassignment and transfer to schools in different countries. The Agency contends that the award is contrary to Government-wide regulation, is based on a nonfact, and that the Arbitrator failed to conduct a fair hearing. For the following reasons, we deny the Agency's exceptions.

II. Background

The grievants are teachers at Agency schools who are classified as "local hires." "Local hires" are United States citizens who were residing in a foreign area at the time of recruitment. Grievant Keith Groethe was hired in England in 1975. He was reassigned to Vicenza, Italy in 1988 under terms of the Agency's Inter-Region Transfer Program (IRTP). Grievant Maria Gonzales was hired in Japan in 1980. She was reassigned in 1988 to Brindisi, Italy under the IRTP.

Groethe was first told that he would receive LQA but was informed before he left England that he would not be paid LQA. Gonzales left Japan with the assurance of the civilian personnel officer that she would be paid LQA, but learned on arrival in Italy that she would not be paid the allowance.

The grievants were in bargaining units represented by the Overseas Education Association (OEA) when they were in England and Japan. However, when they filed grievances protesting the denial of their claims for LQA and other related benefits after arriving in Italy, the grievants were represented by the Overseas Federation of Teachers (OFT or Union). The two grievances were combined and submitted to arbitration.

III. Arbitrator's Award

In establishing the background of the case, the Arbitrator stated that the terms of the negotiated IRTP for the OEA bargaining unit and the IRTP imposed by regulation for the OFT unit are similar and that the purpose of the transfer programs is "to facilitate the movement of employees to non-supervisory positions in order to meet management needs." Award at 2. Under the governing Department of State Standardized Regulations (DSSR), local hire employees who are reassigned to another area are entitled to an LQA if, "as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of [the] agency." Award at 3, citing DSSR, section 031.12c. The Arbitrator quoted the following language from the Agency's Civilian Personnel Manual, Department of Defense Regulation 1400.25-M, section 2-2(b)(6), November 9, 1981, adding material in parentheses to reflect changes made to the regulation on September 1, 1988:

. . . Section 031.12c provides that an LQA may be given to an employee recruited outside the United States if, "as a condition of employment by a Government agency, the employee was required (by that agency) to move to another area, in cases specifically authorized by the head of the agency." A "condition of employment," if not fulfilled, results in failure to gain or retain employment. Section 031.12c, DSSR, will be applied when an employee is relocated to another area by a management-generated action. It will also be applied when management must request that an employee not now eligible for LQA relocate to another area. A management request that an employee relocate is considered a management- generated action. (A move effected through a voluntary reassignment program is not considered to be a management-generated action.)

Award at 3-4.

The Arbitrator referred to another arbitration award involving employees in the bargaining unit represented by OEA who were hired locally in Germany and transferred to the Pacific Region. In that award, Arbitrator Bocken found that the employees were entitled to LQA under the IRTP which had been negotiated between the OEA and the Agency. The Authority denied the Agency's exceptions to that aspect of the award in Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, Pacific Region, 30 FLRA 1206 (1988) (OEA, Pacific Region). The Arbitrator noted that the Bocken award concerned the application of the IRTP negotiated between the Agency and OEA, while the instant case requires an interpretation of the IRTP which applies to OFT employees under an Agency regulation implementing the DSSR.

The Arbitrator held that the IRTP in this case met the requirement of DSSR subsection 031.12(c) that LQA be authorized by the head of the Agency. The Arbitrator stated that because the "Transfer Program Regulation for School Year 1988-89" was authorized by the head of the Agency, "the grievants will prevail, if the record shows entitlement through the IRTP itself." Award at 11.

In addressing the question of whether the two grievants were required by the Agency to participate in the IRTP as a condition of employment, the Arbitrator found that the availability of LQA to the grievants "worked to the advantage of DoDDS by retaining two valuable teachers." Id. The Arbitrator stated that the IRTP itself was "a management-initiated scheme of transfers the success of which depends on its overall operation." Id. at 12. He found that Gonzales would have had to leave her position because of the pending retirement of her husband from the Navy and the loss of his living quarters allowance and that Gonzales "was told to go into the IRTP by her principal; she was assigned to Brindisi by DoDDS; and she was sent half-way around the globe by a [civilian personnel officer] who, as it turns out correctly but for different reasons, had confirmed her LQA rights." Id. The Arbitrator stated that Groethe's transfer "shows clearly that IRTP works as a management-generated tool for manpower adjustments[,]" and the Agency "is in error when it argues that it did not require Groethe to accept the position in Vicenza but merely provided him with the opportunity to request consideration for that position." Id.

The Arbitrator concluded that "the entire IRTP is a management-generated transfer system which is a condition of employment of all DoDDS teachers and includes procedures for the removal from Federal Service of any educator who refuses to comply with a transfer order." Id. at 16. He sustained the two grievances and awarded the grievants LQA and other related benefits retroactive to the effective dates of their transfers.

IV. First Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's award is deficient because it is contrary to the DSSR regulating the payment of LQA which the Authority determined to be a Government-wide regulation in Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 356 (1986), affirmed sub nom. Overseas Education Association v. FLRA, 827 F.2d 814 (D.C. Cir. 1987). The Agency contends that the Arbitrator improperly interpreted the DSSR to allow payment of LQA to the grievants and incorrectly ruled that the terms of the IRTP allowed payment to the grievants without review of the specific circumstances of each case. The Agency contends that the language of the DSSR "mandates that individual cases be reviewed to determine whether LQA may be authorized, and LQA may be provided only when specific authorization has been granted." Exceptions at 5. The Agency maintains that there was no specific authorization by the Agency head for payment of LQA to either grievant and, in the absence of specific authorization, there can be no payment of LQA. The Agency also disputes the Arbitrator's finding that the IRTP is management-directed and is a condition of employment for the grievants. The Agency contends that "the [A]rbitrator's decision which would provide entitlement to LQA under any conditions and in all cases is contrary to the DSSR." Id. at 7.

The Union denies that the award is contrary to the DSSR and notes that the Authority upheld the payment of LQA in similar circumstances in OEA, Pacific Region. The Union maintains that "both grievants in this matter were also informed that they would receive full benefits if they accepted the transfers offered to them and would not have accepted the offers had they known they would not [have been] eligible for the allowances[]" and "the grievants would have faced dismissal if they had changed their minds after accepting the transfer offers." Opposition at 4. The Union also contends that the grievants were entitled to LQA because other employees had received full benefits in the past and because nonbargaining unit managers and administrators have always received full benefits when they were transferred. The Union claims that the Agency has the authority to pay LQA without a specific finding in each individual case and points to a settlement agreement between the Agency and OEA in which the Agency "has agreed to pay full benefits to all local hires in the future[.]" Id. at 6, emphasis in original. The Union also asserts that the grievants could not be denied LQA benefits which had been promised them because "an agency cannot revoke benefits once granted in the absence of a showing of error on the part of the authorizing official[.]" Id. at 7.

B. Analysis and Conclusions

The Agency claims that the DSSR governing the payment of LQA and other benefits to U.S. citizens employed overseas requires specific review of each individual request for LQA and asserts that the Agency head is the only person with the power to review and approve requests for LQA. The Agency disputes the Arbitrator's ruling that the IRTP itself provides the required authorization for LQA. We conclude that the Agency has failed to establish that the Arbitrator's award is contrary to the DSSR.

The Arbitrator noted the difference in circumstances between the situation in OEA, Pacific Region, which concerned a transfer program negotiated between OEA and the Agency, and the instant case, which concerns the Agency's transfer program for employees in the OFT bargaining unit implemented by the "Transfer Program Regulation for School Year 1988-89." Award at 10. The Arbitrator ruled that the Agency head's approval of the entire IRTP constituted the required Agency-head authorization for the payment of LQA to individual employees who met the requirements of the IRTP. The Arbitrator then determined that the grievants were authorized LQA through operation of the IRTP itself. In other words, the Arbitrator found that by approving the IRTP and the requirements contained in it, the Agency head had also approved the payment of LQA, within the meaning of subsection 031.12c of the DSSR, for employees who were transferred under the IRTP.

We reject the Agency's contention that the language of the DSSR "mandates that individual cases be reviewed to determine whether LQA may be authorized, and LQA may be provided only when specific authorization has been granted." Exceptions at 5. The Agency fails to show that the Arbitrator could not interpret the language "specifically authorized" used in section 031.12c of the DSSR in such a manner as to allow a blanket Agency-head approval of LQA to employees properly covered by the IRTP. The Agency has provided no basis for showing that the Arbitrator's interpretation of the DSSR is impermissible or that it is contrary to the DSSR, a Government-wide regulation.

Accordingly, we find that the Agency's exception merely constitutes disagreement with the Arbitrator's reasoning and conclusions and does not provide a basis for finding the award deficient. See U.S. Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 35 FLRA 784, 788 (1990).

We also reject the Agency's contention that the Arbitrator misinterpreted Article 4 of the parties' collective bargaining agreement when he ruled that the IRTP is management-directed and is a condition of employment for employees. The Arbitrator concluded that the transfer program was established for the benefit of the Agency to encourage employees to accept transfers to locations where teachers are needed. He relied, in particular, on the fact that employees who entered the transfer program could be removed for failure to move once a transfer offer was accepted. The Arbitrator stated that "the IRTP is a sensible way for DoDDS to exercise its management right to assign employees as spelled out in Article 4 of the OFT contract." Award at 13. We find that the Agency is merely disagreeing with the Arbitrator's interpretation of the collective bargaining agreement and is attempting to relitigate the issue before the Authority. Such a contention provides no basis for finding the award deficient. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Indianapolis District and The National Treasury Employees Union, Chapter 49, 36 FLRA No. 27 (1990); American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1113 (1990).

V. Second Exception

A. Positions of the Parties

The Agency contends that the award is deficient because it is based on a nonfact. The Agency contends that the Arbitrator reached an erroneous conclusion that the IRTP was management-generated because without the program the Agency would transfer employees involuntarily each year. The Agency states that the Arbitrator's conclusion is not supported by the evidence and asserts that the purpose of the IRTP is not to avoid the need for involuntary reassignments but rather "to facilitate voluntary movement to vacant positions." Exceptions at 8. The Agency contends that if the Arbitrator had not relied on the erroneous belief that the grievants would have been transferred involuntarily if they had not entered the transfer program, he would not have found that the transfer program was a condition of employment and that the grievants were entitled to LQA.

The Union denies that the award is based on a nonfact and asserts that the Agency's exception simply constitutes disagreement with the Arbitrator's findings.

B. Analysis and Conclusions

We will find an award deficient under the Statute because it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the Arbitrator. For example, Department of the Army, 6th Infantry Division (Light), Fort Richardson, Alaska and American Federation of Government Employees, Local 1834, Fort Wainwright, Alaska, 35 FLRA 42, 45 (1990). However, the Agency has failed to establish that the award in this case is based on a nonfact.

The Agency asserts that there is no evidence to support the Arbitrator's conclusion that, without the IRTP, the Agency would have to reassign employees involuntarily each year. However, the Agency has provided no basis on which to find that the Arbitrator's conclusion is based on a central fact which is clearly erroneous. The Arbitrator interpreted the IRTP implemented under the DSSR and the purposes for which the IRTP is intended and concluded that transfers under the transfer program are management-generated and that employees can be removed if they refuse to accept relocation under the program. See Award at 14. In our view, the Agency's exception constitutes mere disagreement with the Arbitrator's findings and conclusions and is an attempt to relitigate the merits of the grievance. Accordingly, the exception provides no basis for finding the award deficient. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C. and American Federation of Government Employees, Local 3407, 35 FLRA 1016 (1990) (exception contending that an award conflicted with an agency regulation constituted an attempt to relitigate the merits of the dispute and provided no basis for finding the award deficient); American Federation of Government Employees, Local 1568 and U.S. Department of Housing and Urban Development, 34 FLRA 630 (1990) (disagreement with the arbitrator's conclusion did not establish that the award was deficient because it was based on nonfacts).

VI. Third Exception

A. Positions of the Parties

The Agency contends that the award is deficient because the Arbitrator denied it a fair hearing. The Agency asserts that the Arbitrator improperly allowed grievant Gonzales to make a personal statement but did not allow the Agency representative to cross-examine her. The Agency contends that in making his award, the Arbitrator considered the statement made by Gonzales pertaining to her husband's retirement from the Navy as a reason for her entering the IRTP, even though the Arbitrator had stated that he would not consider the statement. The Agency also contends that the Arbitrator found that Gonzales' principal told her to participate in the IRTP but "[t]here is nothing in the record to support the [A]rbitrator's conclusion that she was 'told' to participate." Exceptions at 11.

The Agency also contends that the Arbitrator improperly excluded documentary evidence that was dated after the grievances in this case were filed. Specifically, the Agency contends that the Arbitrator excluded and did not consider a settlement agreement between the Agency and OEA providing that local hire employees in the OEA bargaining unit would not receive LQA when transferring. The Agency maintains that because of the exclusion of the settlement agreement from the record it was unable to argue that the settlement agreement extinguished the grievances in this case and, consequently, unequal treatment of employees in the two bargaining units will result.

The Union contends that the Agency has failed to show in what manner it has been harmed by the Arbitrator's conduct of the hearing and that any error that may have occurred was harmless. The Union points out that the Arbitrator "has considerable latitude in the conduct of a hearing." Opposition at 10.

B. Analysis and Conclusions

We conclude that the Agency has not demonstrated that the Arbitrator's award is deficient on the ground that the Arbitrator denied the Agency a fair hearing. In particular, there is nothing in the record before us to indicate that the Arbitrator acted improperly so as to deny the Agency an opportunity to present its case or prevent the Agency from submitting pertinent and material evidence. As the Authority consistently has held, arbitrators have considerable latitude in the conduct of hearings and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. For example, U.S. Department of the Army, Army Reserve Personnel, St. Louis, Missouri and American Federation of Government Employees, Local 900, 35 FLRA 1200, 1205 (1990) (Army Reserve Personnel, St. Louis). Federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides "adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator" and that parties to arbitration do not have an absolute right to cross-examination but must be given an adequate opportunity to present evidence and arguments. See Sunshine Mining Company v. United Steelworkers of America, 823 F.2d 1289, 1295 (9th Cir. 1987) and cases cited therein. The Arbitrator's exercise of his authority to conduct the hearing by allowing grievant Gonzales to give a statement without cross-examination by the Agency did not prevent the Agency from presenting its case in full to the Arbitrator and did not deny the Agency a fair hearing. See Library of Congress and American Federation of State, County and Municipal Employees, Local 2910, 32 FLRA 330 (1988) (union exception that arbitrator improperly did not permit grievant to impeach testimony of her own witnesses did not establish that arbitrator failed to conduct a fair hearing).

Further, the Arbitrator did not deny the Agency a fair hearing by refusing to accept into the record the settlement agreement between the Agency and OEA. The Arbitrator determined that the agreement was not relevant to the resolution of the grievance before him and reiterated in his award that he would not consider the agreement. See Award at 17. The Arbitrator was acting within his authority to conduct the hearing. The Agency is only disagreeing with the Arbitrator's decision as to what evidence should have been admitted at the hearing and with the manner in which he conducted the hearing. See Army Reserve Personnel, St. Louis, 35 FLRA at 1205. Accord Veterans Administration, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 34 FLRA 898, 901 (1990) (arbitrator did not fai