46:1367(133)AR - - National Air Traffic Controllers Association and Transportation, FAA - - 1993 FLRAdec AR - - v46 p1367
[ v46 p1367 ]
The decision of the Authority follows:
46 FLRA No. 133
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
February 12, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Fred Blackwell filed by 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. The Agency filed an opposition to the Union's exceptions.
The grievant filed a grievance contesting the Agency's refusal to pay his moving expenses. The Arbitrator denied the grievance. For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the Union's exceptions.(*)
II. Preliminary Matter
By Order dated August 21, 1992, the Authority directed the Agency to show cause why its opposition should be considered. The Agency's opposition to the Union's exceptions had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than August 12, 1992, in order to be considered timely. In its response, the Agency acknowledges that its opposition was misdirected and mailed to the Authority's Atlanta Regional Office on August 7, 1992. The Agency argues, however, that its opposition was timely filed because it was placed in the mail to the Authority's Docket Room by an employee of the Authority's Regional Office on August 10, 1992, before the August 12, 1992 deadline.
We reject the Agency's argument. The Agency's opposition was received in the Authority's Docket Room on August 17, 1992. Because the opposition was mailed by the Agency to the Authority's Atlanta Regional Office, it was considered filed on the day that it was received in the Authority's Docket Room, August 17, 1992. See, for example, National Association of Government Employees, Local R12-150 and U.S. Department of Defense, National Guard Bureau, State of California, Office of the Adjutant General, 46 FLRA 88, 89 (1992). Accordingly, the opposition was untimely filed and will not be considered.
II. Background and Arbitrator's Award
The grievant was hired on October 30, 1989, as an Air Traffic Control Specialist, GS-7 at the Agency's facility in Florence, South Carolina. In 1989, he attended, but did not graduate from, the Agency's Academy. On January 14, 1990, the grievant was reassigned as an Air Traffic Assistant, GS-7 in Florence. In or about March 1991, the grievant returned to the Academy. In April 1991, the grievant was selected competitively as an Air Traffic Control Specialist, GS-7. He graduated from the Academy in June 1991 as an Air Traffic Control Specialist, GS-9.
Upon graduating from the Academy, the grievant was put in a graduate placement pool from which he was eligible for assignment to any air traffic control facility in the Agency's Southern Region. Before the graduate placement pool was established, however, the grievant and all other Academy trainees were informed by an Agency official in group meetings that employees who had been assigned to an air traffic control facility before their enrollment in the Academy would be returned to that facility. In a meeting with all graduates at the end of the Academy term, the Agency official restated that graduates would be returned to the facility where they worked prior to their enrollment in the Academy.
In a subsequent meeting with a small group of graduates, including the grievant, held for the purpose of discussing assignments to specific facilities, the Agency official informed the grievant that he would be returned to his previous assignment in Florence. The grievant told the Agency official that: (1) he did not want to return to the Florence facility; and (2) his preferences for assignment included the facility in Jacksonville, Florida. At a meeting of all Academy graduates on the next day, the Agency official announced that the grievant would be assigned to the Jacksonville facility. Several graduates who did not want to return to their pre-Academy assignment, including the grievant, executed substantively identical requests for reassignment. The grievant's request stated as follows:
I [,the grievant,] request reassignment from Florence to Jacksonville Center for personnell [sic] reasons; if this request is approved[,] I will pay all expenses associated with this move.
Award at 7-8. The Arbitrator found that "personnell" should be read as "personal." Id. at 8 n.1.
The grievant was reassigned to the Jacksonville facility. On October 15, 1991, the grievant filed a grievance contending that he was entitled to have the Agency pay his moving expenses from Florence to Jacksonville. The grievance was not resolved and was submitted to arbitration. The Arbitrator stated the issue as follows:
Is the Agency obligated to pay the [g]rievant's moving expenses from Florence, South Carolina, to Jacksonville, Florida, in connection with the June 1991 placement of the [g]rievant in the Jacksonville [Center]? If so, what shall the remedy be?
Id. at 10.
Before the Arbitrator, the Union contended that the Agency was required to pay the grievant's moving expenses because his reassignment to Jacksonville constituted a promotion under applicable law and regulations. The Union argued that the grievant's reassignment was identified as a promotion on the Notification of Personnel Action, Standard Form (SF) 50-B. The Union also argued that under Agency regulations, the grievant's reassignment to Jacksonville was in the interest of the Government and not for the benefit of the grievant. The Union claimed that the grievant was forced to sign the statement requesting reassignment and to waive his right to be paid for his moving expenses. The Agency argued before the Arbitrator that it had no obligation to pay the disputed moving expenses because the reassignment of the grievant to Jacksonville was properly implemented under the Agency's policy for placement from the Academy placement pool to a personally desired location and that the reassignment to Jacksonville was for the benefit of the grievant and not in the interest of the Government.
The Arbitrator found that the preponderance of the evidence did not support the grievance. Specifically, the Arbitrator found that the Union had not met its burden of showing that the Agency arbitrarily and capriciously determined that the reassignment of the grievant to the Jacksonville Center was primarily for the convenience of the grievant and not in the interest of the Government. The Arbitrator noted the Agency's policy, in specified circumstances, of reimbursing employees for moving expenses incurred in a permanent change of duty station. The Arbitrator also noted, however, that under applicable Agency regulations, DOT Order 1500.6a, the Agency is not obligated to pay the moving expenses of an employee if the move is primarily for the benefit of the employee.
The Arbitrator found that the Union had established a "prima facie case" that the promotion of the grievant concurrent with his reassignment to the Jacksonville Center meant that the reassignment was primarily for the benefit of the Agency. Award at 13. The Arbitrator concluded, however, that the Agency had rebutted the Union's case by proving that the regulations cited by the Union do not apply to Academy graduates who are placed at an Agency facility at their own request and that the reassignment of the grievant to the Jacksonville Center was primarily for the benefit of the grievant. According to the Arbitrator, the evidence demonstrated that the grievant was informed that he would be assigned to the Florence facility after his graduation and that that assignment did not involve any Agency payment for moving expenses. The Arbitrator stated that the grievant informed the Agency of his reassignment preferences and that "the [g]rievant and the Agency found common ground on Jacksonville as an alternative to the [g]rievant being returned to Florence." Award at 15.
As to whether the grievant had been coerced into waiving his rights, the Arbitrator found that the setting in which the grievant had requested reassignment to Jacksonville did not involve improper Agency action which would have forced the grievant to waive his rights. The Arbitrator found that "[t]he grievant knew that he had to make the request for reassignment in order to avoid returning to Florence, because [the official] had made it clear that the staffing needs at Jacksonville did not require the Agency to move the [g]rievant to that station." Id. at 15. Therefore, the Arbitrator found that "no pressure was caused by . . . the Agency's handling of the placement transaction and hence there is no basis for finding that [the] [g]rievant was forced to waive rights." Id. at 16.
As to whether the grievant's reassignment constituted a promotion, the Arbitrator found that, although the grievant's placement had been entered on the SF 50-B as a promotion, "this entry alone is not dispositive . . . ." Id. The Arbitrator noted that data in other spaces on the form referred to the personnel action as a career promotion. The Arbitrator found, therefore, that the "clarifying data establish that the promotion coded in space 5-B is in fact a [c]areer [p]romotion . . . ." Id.
The Arbitrator also found that the Agency had "established that upon their competitive selection to the Academy, [e]mployees became incumbents of a career ladder position which, upon graduation, had potential for promotion from a GS-7 to [sic] up to a GS-14 and therefore, the move of any [e]mployee from the graduate placement pool to any [Federal Aviation Administration] facility would necessarily be coded as a promotion" on the SF 50-B. Id. at 16-17. The Arbitrator, therefore, found that the grievant's assignment to the Jacksonville Center did not constitute a promotion to a higher-grade position but, rather, concerned "ingrade reassignments initiated by [e]mployees to locations desired by the [e]mployees." Id. at 17.
The Arbitrator noted that the grievant's placement could be classified as both a promotion under FAA Order 1520.1A, Guideline 6(1)(e) and as a reassignment to a location desirable to the grievant under Guideline 6(2)(b). The Arbitrator found that Guideline 6(2)(b) governed the grievant's placement because "the specific circumstances surrounding [the grievant's] situation show that all graduates were entitled to a GS-9 when they left the Academy and that the assignment of any graduate to any facility would be coded as a promotion on the [SF 50-B]." Id. at 18.
Therefore, the Arbitrator concluded that: (1) the Union had not established that the Agency was arbitrary and capricious in denying the grievant's moving expenses; (2) the grievant's placement at the Jacksonville Center was primarily for the benefit of the grievant; and (3) the grievant's placement was not primarily for the benefit of the Government. Accordingly, the Arbitrator denied the grievance.
IV. First and Second Exceptions
A. Union's Contentions
The Union contends that the award is inconsistent with applicable law and regulations and that the award constitutes a prohibited personnel practice. The Union asserts that there is nothing in relevant Government-wide regulations which would permit "an agency to construe a promotion to be a reassignment under [its] [i]nternal [p]lacement procedures . . . ." Exceptions at 5. The Union argues that the nature of the grievant's placement action "was a promotion and nothing else." Id. at 6.
The Union also contends that the Arbitrator ignored the parties' agreement. The Union argues that the Arbitrator did not "address the agreement per se, let alone discuss any of the language therein." Id. at 10. According to the Union, "[i]t is simply impossible to conclude, or even assert, that [the Arbitrator's] decision and award is based, in any part, on his interpretation of any . . . language in the [p]arties['] [a]greement." Id. at 2.
B. Analysis and Conclusions
The Union's contentions provide no basis for finding the award deficient. The Union has not cited any portion of the Arbitrator's award that is inconsistent with any law or regulation and no conflict is apparent to us. Specifically, the Union has not demonstrated that the Arbitrator erred in concluding that the grievant's reassignment was governed by regulations that prevent the Agency's payment of moving expenses to employees who change their duty stations for their personal benefit rather than for the benefit of the Government. In our view, therefore, the Union's contentions constitute nothing more than disagreement with the Arbitrator's findings of fact and his conclusions. As such, the contentions provide no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1142 (1992).
Further, we construe the Union's allegation that the award does not address pertinent provisions of that agreement as a contention that the award does not 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 and fact, and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. Id.
The Union does not demonstrate, and it is not otherwise apparent, that the award is either irrational, implausible, or in manifest disregard of the agreement. The Union does not make any argument as to what the agreement provides or how the Arbitrator's award is inconsistent with the parties' agreement. In our view, therefore, the Union's contention constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement. Such disagreement provides no basis for finding the award deficient. Id. at 1143. Accordingly, we will deny the Union's first and second exceptions.
V. Third Exception
A. Union's Contentions
The Union contends that the award is based on the Arbitrator's erroneous conclusion that the grievant and all other Academy graduates are similarly situated. The Union argues that, unlike the majority of Academy graduates who are newly appointed employees and responsible for paying the moving expenses to their first assignment, the grievant is not a newly appointed employee. The Union asserts that the grievant had been assigned to the Florence facility for more than 1 year before attending the Academy in 1991.
B. Analysis and Conclusions
We interpret the Union's exception as a contention that the Arbitrator's award is based on a nonfact. Where a party contends that an arbitrator's award is deficient because it is based on a nonfact, the party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, American Federation of Government Employees, AFL-CIO, Local 2754 and General Services Administration, Region Six, Kansas City, Missouri, 45 FLRA 670, 672 (1992).
The record does not establish that the Arbitrator found that all Academy graduates are similarly situated. Moreover, the Union has not demonstrated that the award was based on such a finding or on any clearly erroneous fact underlying the Arbitrator's award but for which a different result would have been reached by the Arbitrator. We find, therefore, that the Union is merely disagreeing with the Arbitrator's findings of fact. Such disagreement provides