47:0638(59)AR - - National Air Traffic Controllers Association and Transportsation, FAA, Billings, MT - - 1993 FLRAdec AR - - v47 p638
[ v47 p638 ]
The decision of the Authority follows:
47 FLRA No. 59
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
May 19, 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 William E. Rentfro 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 Arbitrator denied a grievance over the Agency's delay in implementing the promotion of an employee selected for a higher-graded position at a distant location based on lack of travel and relocation funds. The Union asserts that the award is contrary to law, rule, and regulation. For the following reasons, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is a GS-11 Air Traffic Control Specialist in Billings, Montana, who applied for a GS-12 position in Flint, Michigan. Billings is in the Agency's Northwest Mountain Region and Flint is in the Great Lakes Region. The grievant was selected for the GS-12 position and was advised of his selection in a memorandum dated September 9, 1991, from the Air Traffic Manager of the Flint facility. The memorandum stated that the effective date of the grievant's promotion and reassignment to Flint would be November 17, 1991, with a reporting date of November 21, 1991, and that permanent change of station (PCS) benefits had been authorized.
Subsequently, in telephone calls on September 13, 1991, and October 9, 1991, the Flint Air Traffic Manager advised the grievant that, because of budget constraints, the grievant's move to Flint would have to be delayed and travel orders had not been issued. The Air Traffic Manager "warned [the g]rievant on both occasions not to incur any moving expenses until his travel orders were received." Award at 2. In December, the grievant was notified by the Agency that travel funds were allocated on the basis of priority lists and that he might not be able to move to Flint until March 1992.
In December 1991, the grievant filed a grievance alleging that he was being treated unfairly and that the Agency had violated the parties' collective bargaining agreement and the Agency's merit promotion program by delaying his transfer and promotion. The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the following issue for resolution:
Did the Agency violate the [a]greement, law, rule, or regulation by delaying [g]rievant's transfer and promotion due to the unavailability of funds to pay [g]rievant's relocation expenses? If so, what is the appropriate remedy?
Id. at 1.
The Union argued before the Arbitrator that the grievant was treated arbitrarily and the Agency's "continual reprioritization of transfer applicants always results in [the g]rievant having the lowest priority . . . ." Id. at 5. The Union contended that the Agency had no authority for using priority lists and that the various regions of the Agency handled PCS funds differently, "making disparate treatment of employees unavoidable." Id. The Union asserted that other controllers who were selected for positions after the grievant had been selected had been relocated and that the delay in moving the grievant violated Agency Order 3330.1B and 5 U.S.C. § 5724, which provides for the payment of travel expenses when travel is made in the interest of the Government.(1) The Union maintained that the grievant's promotion to a higher grade position was in the best interest of the Government. The Union also contended that the Agency's travel fund restrictions did not apply to the grievant because the restrictions were imposed after he was notified of his selection. The Union also argued that the Agency's denial of travel expenses to the grievant violated decisions of the Comptroller General, including David C. Goodyear, 56 Comp. Gen. 709 (1977) (Goodyear).
The Union further contended that the Agency committed a prohibited personnel practice in violation of 5 U.S.C. § 2302(b)(9) and the parties' collective bargaining agreement when the grievant "was threatened with the loss of his promotion when he called the [Agency] Administrator's Hotline seeking information about his delayed transfer." Award at 6.(2) The Union asserted that the Agency failed to provide "all information requested by the Union during the lower grievance steps and during preparation for arbitration . . . in violation of [section 7114 of the Statute] and Article 9, Section 19 of the [a]greement." Id. at 6-7.
Before the Arbitrator, the Agency denied the Union's allegations and maintained that no transfer of the grievant had taken place and that the selection procedure had not been completed. The Agency defended its use of a priority list and testified that in the Great Lakes Region "60 to 80 employees are awaiting additional PCS funding for moving expenses." Id. at 8. The Agency denied that its use of priority lists for allocating PCS funds violated the collective bargaining agreement. The Agency asserted that the grievant's selection for the GS-12 position remained pending and that he would be transferred to the new position as soon as funds become available.
The Arbitrator found that the Union had failed to establish that there had been any violation of law, regulation, or the parties' collective bargaining agreement in the Agency's failure to transfer the grievant. The Arbitrator rejected the Union's argument that, once the grievant was notified of selection, "the Agency must issue travel orders to allow the transferee to incur relocation expenses reimbursable by the Government." Id. at 10. He found that the Union had presented no law, regulation, or provision of the parties' agreement requiring such action by the Agency. Further, the Arbitrator noted that a number of steps must be completed before a position change becomes effective and that those steps had not been completed in the case of the grievant. The Arbitrator also rejected the Union's contention that the grievant had been treated unfairly and inequitably compared to other employees. He stated that "[t]he Agency's prioritization of pending transfers is not arbitrary, unfair, or inequitable. The criteria used to prioritize the transfer requests focus on legitimate Agency concerns." Id. at 12.
The Arbitrator held that the Union's argument concerning the Agency's duty to pay moving and travel expenses when incurred in the interest of the Government "misses the mark" because the grievant has not yet been transferred and "is not entitled to reimbursement of relocation expenses under the cited provisions until he actually relocates." Id. at 13-14. The Arbitrator found no merit in the Union's argument that the grievant had missed promotion opportunities because of the delay in his transfer and noted that the grievant was free to pursue other promotional opportunities if he so desired.
Further, the Arbitrator found that there was no showing that the Agency had committed a prohibited personnel practice under 5 U.S.C. § 2302(b)(9) and the parties' agreement because of an alleged threat to the grievant by a person on the Administrator's Hotline. He noted that "there is no evidence that any personnel action which would bring the case within paragraph (9) was taken or not taken . . . [and] [n]othing that occurred because of the Hotline call changed [the g]rievant's status or caused his transfer to be delayed." Id. at 15. The Arbitrator found that it was not necessary to address the Union's contention that the Hotline incident resulted in an unfair labor practice in order for him to resolve the grievance.
The Arbitrator also rejected the Union's claim that the Agency violated section 7114 of the Statute and the parties' agreement by "acting in bad faith [and] being uncooperative, evasive, and misleading" in responding to the Union's information requests. Id. at 16. The Arbitrator noted that the Statute requires that requested information be "'reasonably available and necessary for full and proper discussion, understanding, and negotiation[,]'" and that the parties' agreement "requires the information to be 'relevant and necessary to the processing of the grievance.'" Id. Stating that the Agency "must balance its concerns about privacy, relevancy, and propriety with the Union's need for information[,]" the Arbitrator concluded that "[u]nder the circumstances, the Agency made reasonable attempts to provide the requested information it felt was reasonably available, relevant and necessary." Id. The Arbitrator found that, although "the information requested by the Union appeared to be irrelevant to the Agency because it had a different theory of the case than the Union, [n]evertheless, the Agency responded at least six times to Union information requests [and] [e]ach time additional information was provided and/or clarification of the request was sought." Id. at 18. The Arbitrator concluded that "the Agency's actions in balancing its privacy and relevancy concerns with the Union's request do not rise to the level of bad faith and did not violate the [S]tatute or the [a]greement in this case." Id.
Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. The Union
The Union asserts that the award is deficient because it is contrary to law, rule, regulation, and the parties' collective bargaining agreement. The Union contends that the Arbitrator erred when he found that the Agency did not violate the controlling Agency regulations covering merit promotion and the payment of travel and moving expenses. The Union maintains that Agency Order 3330.1B prohibits a selecting official from informing an applicant of selection until all procedural requirements are met. The Union contends that the Agency's actions with respect to the grievant clearly violate that provision. The Union further maintains that the Arbitrator disregarded Agency Order 1500.6A, which "states [that] limitations of available travel funds shall not be the basis for denying reimbursement." Exceptions at 4. The Union also cites Agency Order 1520.1A, which provides guidelines for determining the eligibility of employees for reimbursement of transportation costs when making geographical moves. The Union argues that the grievant was properly selected and should have been released from his position at Billings no later than two pay periods after he was notified of his selection for the position at Flint.
The Union also maintains that the Arbitrator failed to properly apply the Comptroller General's decision in Goodyear. The Union argues that Goodyear clearly requires the payment of travel and moving expenses in the grievant's case because his selection and transfer would be in the best interests of the Government.
Further, the Union contends that the Arbitrator erred by not finding that the grievant was subjected to disparate treatment. The Union maintains that the merit promotion program is national in scope and that the differences between the policies of the Northwest Mountain Region and the Great Lakes Region should have been recognized by the Arbitrator as creating a situation that "is inherently unfair and constitutes disparate treatment on a [n]ational scale." Id. at 8. The Union asserts that the Arbitrator should have found that the relocation priority list used by the Agency was administered unfairly and resulted in disparate treatment of the grievant.
The Union also asserts that the Arbitrator erred by not finding that the Agency violated section 7114(b)(4) of the Statute when the Agency failed to furnish information requested by the Union. The Union maintains that the Agency failed to establish that the information requested by the Union was not relevant to the issue in the grievance. According to the Union, the information that it requested "clearly serves the 'public interest' in that there was [a] question as to the Agency's administration of the PCS fund allocation system." Id. at 11. The Union contends that the Agency unduly delayed supplying information to the Union and that such a delay constitutes evidence of the Agency's bad faith.
Additionally, the Union claims that the Agency unfairly introduced information after the close of the hearing and that the Arbitrator had an improper ex parte contact with the Agency concerning that information. Citing Overseas Education Association and Department of Defense Dependents Schools, Atlantic Region, 31 FLRA 80 (1988) (OEA) for the proposition that an award will not be set aside on the basis of the submission of an ex parte brief if the arbitrator states that he did not consider the submission, the Union asserts that the Arbitrator failed to indicate in his award whether he had considered the post-hearing information supplied by the Agency.
Finally, the Union contends that the Arbitrator erred in failing to find a prohibited personnel practice under 5 U.S.C. § 2302(b)(9). The Union maintains that its charges that the grievant was threatened by the Agency representative on the Administrator's Hotline "have gone unchallenged and unrefuted . . . . [and] the veracity of the charges must be accepted." Id. at 14. The Union maintains that the grievant's call to the Hotline resulted in a change in his position on the relocation priority list and should have been found by the Arbitrator to constitute a prohibited personnel practice.
B. The Agency
The Agency asserts that the Union's exceptions fail to establish that the award is contrary to law, rule, regulation, or the parties' agreement and maintains that the Union is only disagreeing with the Arbitrator's findings and attempting to relitigate the matter before the Authority. The Agency denies that it had incurred any obligation to transfer the grievant and to pay his travel and moving expenses and contends that the Arbitrator properly found that there had been no transfer and that Goodyear did not apply. The Agency also denies that the grievant received disparate treatment. The Agency contends that the Arbitrator properly ruled on the Union's contentions regarding the provision of information requested by the Union. Finally, the Agency denies that there had been improper ex parte communication with the Arbitrator and maintains that any contact with the Arbitrator concerned the administrative matter of whether the Agency planned to respond to a Union motion and did not affect the outcome of the award.
IV. Analysis and Conclusions
A. The Award Is Not Contrary to Law, Rule, or Regulation
We reject the Union's contentions that the award violates law, rule, or regulation. The Union contends that the Arbitrator's award fails to comply with law and Agency regulations because the Arbitrator determined that the Agency was not required to transfer the grievant until travel and relocation funds became available. However, we find that the Arbitrator fully considered the relevant legal and regulatory provisions pertinent to the issue before him regarding payment of relocation expenses in connection with the grievant's promotion and that he properly determined that the Agency had not violated those provisions.
The Arbitrator considered and rejected the Union's arguments that the steps required for the transfer of the grievant as set forth in Agency Order 3330.1B and the Great Lakes Region supplement to that regulation had been met. The Arbitrator stated that "[t]he Union has offered no law, regulation, or [a]greement provision which requires travel orders to be issued without adequate Agency funding." Award at 11. The Arbitrator also stated that "[r]elocation benefits are not available until all steps of the transfer process are completed and the transferee actually makes the position change[,]" and he noted that the grievant was "warned several times" not to make a change until he received travel orders. Id. at 14. We conclude that the Union has failed to demonstrate that the Arbitrator's finding in this regard is contrary to any law or regulation, particularly Agency Order 3330.1B and the Great Lakes Region supplement to that order, Agency Order 1500.6A and Agency Order 1520.1A. Rather, the Union's contention constitutes nothing more than disagreement with the Arbitrator's findings of fact and conclusions and an attempt to relitigate this case before the Authority, which provides no basis for finding the award deficient. See, for example, National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, 46 FLRA 1367, 1372-73 (1993); National Federation of Federal Employees, Local 1636 and U.S. Department of Defense, National Guard Bureau, New Mexico National Guard, Albuquerque, New Mexico, 45 FLRA 1045, 1049 (1992).
We note that the Union's reliance on Goodyear as dispositive of this case is misplaced. Goodyear concerned a claim for reimbursement of travel and moving expenses that had already been incurred by an employee. In Goodyear, the agency involved had failed to make a specific finding that the employee's relocation was in the interest of the Government. Goodyear does not apply in the instant case because, although there is no contention that the grievant's promotion and transfer to Flint was not in the interest of the Government, no action had been taken on that transfer. The Union fails to show that Goodyear or any other authority requires the Agency to issue travel orders and effectuate the grievant's promotion in the absence of travel and relocation funding. Accordingly, we reject the Union's contentions regarding Goodyear.
B. The Information Requests
With respect to the Union's contention that the Arbitrator should have found a violation of section 7114(b)(4) of the Statute, we find that the Union has failed to establish that the award is deficient. Section 7114(b)(4) of the Statute requires an agency to furnish a union, upon request and to the extent not prohibited by law, with data that: (1) is normally maintained by the agency in the regular course of business; (2) is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (3) does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. Thus, an agency is obligated under section 7114(b)(4) of the Statute to furnish an exclusive representative with information that is necessary to enable the union to fulfill its representational functions, including representation of employees in grievance arbitration. See U.S. Department of the Treasury, Internal Revenue Service, Phoenix District and National Treasury Employees Union, Chapter 33, 43 FLRA 686, 689 (1991).
In this case, the Union has not demonstrated that it was denied information to which it was entitled under section 7114(b)(4) of the Statute. We note that the Arbitrator: (1) correctly stated that, under the Statute, requested information must be reasonably available and necessary for full and proper discussion, understanding, and negotiation; (2) rejected the Union's charge that the Agency was "acting in bad faith, being uncooperative, evasive, and misleading in responding to the Union's eight requests for information"; (3) found that the Agency had responded "at least six times" to the Union's information requests and had attempted to work with the Union to resolve problems concerning information requests; and (4) further found that "the Agency's actions in balancing its privacy and relevancy concerns with the Union's request do not rise to the level of bad faith and did not violate the [S]tatute or the [a]greement in this case." Award at 16, 18. Thus, the Arbitrator determined that the Agency's responses to the Union's requests for information did not violate section 7114(b)(4) of the Statute or the parties' agreement.
In our view, the Union has not shown that it requested specific information from the Agency and that the Agency refused to furnish the Union with such information in violation of the requirements set forth in section 7114(b)(4) of the Statute. Specifically, in its exceptions the Union has not identified the particular information that it requested and which the Agency failed to provide or made any demonstration as to why it is entitled to that information under the Statute. The Union's arguments simply amount to a general claim that the Arbitrator incorrectly found that the Agency's action was consistent with the Statute. Consequently, the Union has not shown that the Arbitrator erred in finding that the Agency had met its obligations under section 7114(b)(4) of the Statute.(3) Rather, the Union's contention that the Arbitrator should have found a violation of section 7114(b)(4) of the Statute constitutes nothing more than disagreement with the Arbitrator's finding and conclusion that the Agency did not violate section 7114(b)(4) of the Statute and with his interpretation of the parties' collective bargaining agreement. Such disagreement provides no basis for finding the award deficient. See U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1170-71 (1992) (union's argument that award was deficient because arbitrator erred in finding that union was not prejudiced by agency's refusal to disclose the identity of an informant constituted nothing more than disagreement with arbitrator's findings, conclusions, and evaluation of the evidence); U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1143 (1992) (disagreement with arbitrator's interpretation and application of agreement provides no basis for finding award deficient).
C. Post-Hearing Information and Ex Parte Contact Between the Arbitrator and the Agency
We find no merit in the Union's assertion that the award is deficient because the Arbitrator improperly considered information included in the Agency's post-hearing brief that had not been introduced into evidence at the hearing and the Arbitrator had an improper ex parte contact with the Agency concerning the Union's motion to strike that information.
We construe the Union's assertion that the Arbitrator improperly considered information included in the Agency's brief to the Arbitrator after the close of the hearing as a contention that the Arbitrator failed to conduct a fair hearing. The Authority will find an arbitration award deficient if it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. See, for example, U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 FLRA 94 (1991). Here, the Union alleges, in effect, that the Arbitrator failed to conduct a fair hearing by considering additional information introduced by the Agency after the hearing. However, the Union had the opportunity to respond to the information as evidenced by its motion to the Arbitrator to strike the information. Further, the Union has not demonstrated that the Arbitrator considered the information in making his award, or, even if he had considered the information, that the Union was prejudiced as a result.
In that regard, we reject the Union's argument that the award is deficient under OEA because the Arbitrator failed to make an explicit statement in his award that he did not rely on the post-hearing information submitted by the Agency to the Arbitrator. In OEA we did not establish a requirement that an arbitrator make such a statement in order for us to find that an award is not deficient. Rather, we merely noted that an arbitrator specifically informed an agency that he had not relied on a disputed ex parte communication and on that basis we concluded that the award was not deficient. See OEA, 31 FLRA at 94. In this case, we find that the absence of such a statement by the Arbitrator does not mean that he considered information that was not properly introduced into evidence. Therefore, we conclude that the Union has not demonstrated that it was denied a fair hearing in this case.
We construe the Union's contention that the Arbitrator had an improper ex parte contact with the Agency as a contention that the Arbitrator was biased. However, the Union's contention provides no basis for finding the award deficient on that ground. To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown, for example, that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. For example, U.S. Department of the Treasury, Customs Service, Houston, Texas and National Treasury Employees Union, 41 FLRA 485, 493 (1991). The Union has not shown that the award is deficient under any of these tests. There is no showing that the Arbitrator's contact with the Agency concerned anything more than a discussion of "whether the Agency planned to submit any response to the [Union's] motion [to strike the post-hearing information]." Opposition at 11. In our view, the Union has failed to establish any impropriety on the part of the Arbitrator that destroyed the fairness of the arbitration proceedings. Accordingly, we conclude that the Union's exceptions in this regard merely constitute an attempt to relitigate the grievance before the Authority and, as such, provide no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 2109 and U.S. Department of Veterans Affairs, Temple, Texas, 46 FLRA 446, 449 (1992).
D. Prohibited Personnel Practice and Disparate Treatment
Finally, we find no merit in the Union's contentions that the Arbitrator erred by failing to find that the Agency had committed a prohibited personnel practice against the grievant. The Arbitrator specifically considered and rejected the Union's claim that the grievant was placed in a lower position in the relocation priority list in retaliation for or as a result of his call to the Administrator's Hotline. The Arbitrator stated that he found no evidence to substantiate the Union's claim.
We also find no merit in the contention that the award is deficient because the Arbitrator should have found that the Agency's relocation priority list was maintained in a disparate manner. The Arbitrator found no evidence that the grievant had been treated in a disparate manner in the delay of his promotion and transfer as compared to a large number of other Agency employees in similar situations. In particular, the Union has not shown that the Arbitrator erred when he failed to find that the Agency improperly maintained priority lists on a regional rather than a national basis and thereby treated the grievant in a disparate manner. We conclude that the Union's exceptions in this regard constitute mere disagreement with the Arbitrator's evaluation of the evidence and his reasoning and conclusions and are nothing more than an attempt to relitigate the issues decided by the Arbitrator. As such, the exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute. See, for example, American Federation of Government Employees, Local 1988 and U.S. Department of Veterans Affairs, Brooklyn Medical Center, 46 FLRA 1450, 1455 (1993); U.S. Department of Agriculture, Farmers Home Administration, Finance Office, St. Louis, Missouri and American Federation of Government Employees, Local 3354, 46 FLRA 881, 889 (1992).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. 5 U.S.C. § 5724 states, in relevant part, that:
[T]he agency shall pay from Government funds--
(1) the travel expenses of an employee transferred in the interest of the Government from one official station or agency to another for permanent duty, and the transportation expenses of his immediate family, or a commutation thereof under section 5704 of this title[.]
2. 5 U.S.C. § 2302(b) provides in relevant part:
(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority--
. . . .
(9) take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation[.]
3. To the extent that the Arbitrator's discussion of section 7114(b)(4) of the Statute fails to set forth accurately the requirements of that provision as applied by the Authority, we disavow those comments. For example, the Arbitrator erroneously suggests that an agency's opinion of the relevance of requested information, based on its theory of the request, is a factor in determining whether the agency is required to provide the union with that information under section 7114(b)(4) of the Statute. However, the Arbitrator's remarks in this regard provide no basis for setting aside the award because, as we found above, the Union has not shown that it requested specific information from the Agency and that the Agency refused to furnish the Union with such information in violation of the requirements set forth in section 7114(b)(4) of the Statute.