39:0707(59)AR - - International Organization of Masters, Mates and Pilots, Marine Division, ILA and Panama Canal Commission - - 1991 FLRAdec AR - - v39 p707
[ v39 p707 ]
The decision of the Authority follows:
39 FLRA No. 59
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS
MARINE DIVISION, ILA
CANAL PILOTS BRANCH
PANAMA CANAL COMMISSION
February 19, 1991
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 George S. Ives filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions and the Union filed a response to the Agency's opposition.(1)
Three grievances were filed, and consolidated for arbitration, over the Agency's refusal to reimburse the grievants for certain car-rental expenses. The Arbitrator denied the grievances.
For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On April 8, 1988, President Reagan issued Executive Order 12635. 53 Fed. Reg. 12134 (1988). As relevant here, the Executive Order prohibited the direct or indirect payment or transfer of money from the U.S. Government to the Panamanian Government. The Executive Order required that all such payments or transfers be made into an account at a designated Federal Reserve bank and held for the benefit of the Panamanian people. Pursuant to the Executive Order, the Agency withheld payment to the Panamanian Government of certain income and other taxes of its employees and, instead, transferred those payments to the Federal Reserve bank.
The Panamanian Government responded to the Executive Order by, among other things, withholding certain tax certificates necessary for Agency employees to register their privately-owned motor vehicles and, in late 1988, by seizing automobiles of employees whose taxes had not been paid. On January 3, 1989, the Agency began reimbursing employees, whose vehicles had been seized, for car-rental expenses at the rate of $154 per week.
Despite the actions of the Panamanian Government, many Agency employees were able to obtain Panamanian license plates by transferring titles of their vehicles to members of their families. Accordingly, on March 15, 1989, the Panamanian Government notified the Agency that it would begin confiscating such license plates on automobiles in parking lots on the Agency's premises. Thereafter, effective March 26, 1989, the Agency began reimbursing employees, who certified that they were unable to use their privately-owned vehicles for commuting to and from work, at the rate of $7 per day to offset the costs of alternative transportation. The Agency's reimbursement program continued until January 3, 1990.
The grievants, three pilots who are employed to transit vessels through the Panama Canal, were unable to obtain license plates for their privately-owned vehicles. The grievants obtained rental cars in order to commute to and from work and submitted claims for reimbursement for the car-rental expenses to the Agency. When the Agency refused to reimburse the grievants for those expenses, they filed grievances which were consolidated for arbitration.
As the parties did not stipulate the issue to be resolved in arbitration, the Arbitrator framed the issue:
[T]he issue for determination is whether the Employer has a contractual obligation under the Agreement between the parties to reimburse the Grievants for certain expenses and costs incurred by them through use of rental automobiles for specified periods in 1989, while they were unable to operate their privately owned motor vehicles because they could not obtain valid Panam[an]ian license plates due to their Employer's compliance with Executive Order 12635 . . . . If so, what should the remedy be?
Award at 2.
Before the Arbitrator, the Union argued that the Agency's failure to reimburse the grievants for their car-rental expenses violated Article 11, Section 1 of the parties' collective bargaining agreement.(2) The Union also argued that the Agency's compliance with Executive Order 12635 violated the Panama Canal Treaty and, as such, violated Article 5, Section 1 of the agreement, which requires the Agency to comply with "applicable treaties, laws, and regulations of appropriate authorities." Award at 6. The Union maintained, in this regard, that the Agency was "contractually obligated" to compensate the grievants for their car-rental expenses.
The Arbitrator rejected the Union's arguments. The Arbitrator found first that, as an agency of the Federal Government, the Agency was required to comply with the Executive Order. The Arbitrator found also that, as the withheld payments were transferred to a designated Federal Reserve bank for the future benefit of the Panamanian people, the Agency did not violate the Panama Canal Treaty.
The Arbitrator noted that the Agency had instituted a program to reimburse employees, whose vehicles had been seized, for car-rental expenses. The Arbitrator stated, however, that the Agency did not consider extending that relief to employees who were unable to obtain license plates "because the legal authority then relied on for such payments was the Panamanian Tort Claims Act, and actual wrongful conversion of property is a necessary element for the application of such statutory relief." Id. at 10.
The Arbitrator also rejected the Union's claim that the Agency's reimbursement program "was arbitrary and minimal[.]" Id. at 11. According to the Arbitrator, the grievants lived many miles from their duty stations for their personal convenience and, except for their irregular work hours, the grievants' circumstances were not different from those of other employees. Noting that the Agency was willing to accept claims from the grievants for reimbursement under the $7-per-day program, the Arbitrator held that the Agency was not obligated to reimburse the grievants "who, without any prior consultation and approval, rented motor vehicles with personal funds and only then sought reimburs[e]ment." Id. at 13. The Arbitrator concluded that the Union had failed to establish "a contractual basis for the requested remedy of reimbursement" and, accordingly, denied the grievances. Id.
III. The First Exception
A. Positions of the Parties
The Union argues that the Agency violated Article 11, Section 1 of the parties' agreement by failing to reimburse the grievants for their car-rental expenses. According to the Union, pilots are subject to discipline for failing to report to work and, in this case, it was necessary for the grievants to obtain rental cars in order to report for duty.
The Agency argues that this exception constitutes an attempt to relitigate the merits of the grievances and does not demonstrate that the award is deficient.
B. Analysis and Conclusions
We construe the Union's exception as a contention that the award fails to draw its essence from the parties' agreement. To demonstrate that an award is deficient on this basis, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact, so unconnected with the wording and purposes of the agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council, Local 3725, 36 FLRA 928, 933 (1990) (Department of Justice).
The Union has not demonstrated that the award is deficient under any of these tests. The Arbitrator specifically addressed, and rejected, the Union's argument that the Agency's failure to reimburse the grievants for their car-rental expenses violated Article 11, Section 1 of the parties' agreement. Nothing in the Arbitrator's interpretation of this provision is irrational or implausible. There is, therefore, no basis on which to conclude that the award fails to draw its essence from the agreement.
IV. The Second Exception
A. Positions of the Parties
The Union argues that the Arbitrator erroneously relied on the Panamanian Tort Claims Act in concluding that the Agency was not obligated to reimburse the grievants for their car-rental expenses. According to the Union, that statute does not apply to the Agency or to the grievants. The Union also argues that the Arbitrator based his decision on his finding that the Agency did not violate applicable law in failing to reimburse the grievants. The Union states that "performance of an act authorized by law can be a contract violation." Exceptions at 6.
The Agency argues that during the arbitration hearing, it relied on 22 U.S.C. º 3761 (3) and that it referred to that provision as both "The Panama Canal Tort Statute" and "The Panama Canal Tort Claims Statute." Opposition at 6. The Agency asserts that the Arbitrator simply "named the statute incorrectly." Id. Construing the Union's exception as a contention that the award is based on a nonfact, the Agency argues that the Arbitrator's mistaken identification of the statute is not a central fact underlying the award.
B. Analysis and Conclusions
We construe this exception as a contention that the award is based on a nonfact. We note that the Union does not assert that the Agency was required, under 22 U.S.C. º 3761 or any other statutory provision, to reimburse the grievants for their car-rental expenses. As such, we do not address the Agency's arguments regarding the extent to which a wrongful conversion of property is a necessary condition for the Agency's assumption of liability under 22 U.S.C. º 3761.
In order for an award to be found deficient on the ground that it is based on a nonfact, a party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, U.S. Department of the Air Force, Air Logistics Center, McClellan Air Force Base, Sacramento, California and International Federation of Professional and Technical Engineers, Local 330, 37 FLRA 1071, 1075 (1990) (McClellan AFB). The parties agree, in this regard, that the Panamanian Tort Claims Act does not apply in this case and, accordingly, the Arbitrator's reference to that statute was erroneous. Even assuming that the Arbitrator's erroneous reference constitutes an erroneous fact, however, the Union has not demonstrated that the reference was a central fact underlying the award.
The Arbitrator referred to the Panamanian Tort Claims Act only in addressing the Agency's asserted reason for failing to extend its car-rental reimbursement program to employees who were unable to obtain license plates. Nothing in the award shows that the Arbitrator relied on that provision in reaching his award. Moreover, as the parties did not stipulate the issue to be resolved in arbitration, the Arbitrator framed the issue as encompassing only the Agency's contractual obligations to reimburse the grievants. In the absence of a stipulation of the issue to be resolved, an arbitrator's formulation of the issue is accorded substantial deference. For example, Department of Health and Human Services, Social Security Administration, Birmingham, Alabama and American Federation of Government Employees, Local 2206, 35 FLRA 830, 832 (1990) (SSA). The award is directly responsive to the issue as the Arbitrator framed it. In view of the issue resolved by the Arbitrator, and the absence of a basis on which to conclude that the Arbitrator relied on his reference to the Panamanian Tort Claims Act in resolving that issue, the Union has not demonstrated that the award is based on a nonfact.
V. The Third and Fourth Exceptions
A. Positions of the Parties
In its third exception, the Union argues that the Agency violated Article 16, Section 8 of the parties' agreement.(4) The Union asserts, in this regard, that the Agency is authorized under 31 U.S.C. º 3721 to reimburse the grievants for their car-rental expenses.(5) In its fourth exception, the Union points to the Arbitrator's reference to the Agency's contention that Congress consistently has sought to restrict expenditures of Federal funds for employees' home-to-work travel. The Union argues that, consistent with 31 U.S.C. º 3721, the Agency is not prohibited from reimbursing the grievants for their car-rental expenses.
The Agency argues that the Union's allegations regarding Article 16, Section 8 of the parties' agreement and the Agency's authority under 31 U.S.C. º 3721 were not raised to the Arbitrator and, therefore, cannot be raised before the Authority. The Agency argues also that, if the Authority considers these arguments, it properly denied the grievants' claims for reimbursement. The Agency asserts that the Arbitrator's conclusion that the Agency was not legally obligated to reimburse the grievants is consistent with applicable law and regulation.
B. Analysis and Conclusions
In agreement with the Agency, we conclude that the issue of whether the Agency violated Article 16, Section 8 of the parties' agreement was not raised to the Arbitrator. We note, in this regard, that there is no mention in the award of that provision or of any arguments concerning it. As there is no basis on which to conclude that this issue was raised to the Arbitrator, we conclude that the exception constitutes mere disagreement with the Arbitrator's framing and resolution of the issue before him. This disagreement provides no basis for finding the award deficient. See SSA, 35 FLRA at 833. See also 5 C.F.R. º 2429.5.
Similarly, there is no indication that the issue of the Agency's obligations under 31 U.S.C. º 3761 was raised to the Arbitrator. Moreover, the Union does not argue that the award is inconsistent with law because the Agency was required under 31 U.S.C. º 3761 to reimburse the grievants. Instead, consistent with the plain wording of that provision,