47:0658(61)AR - - Transportation, FAA, Southern Region, Atlanta, GA and National Air Traffic Controllers Association - - 1993 FLRAdec AR - - v47 p658



[ v47 p658 ]
47:0658(61)AR
The decision of the Authority follows:


47 FLRA No. 61

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

SOUTHERN REGION

ATLANTA, GEORGIA

(Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

(Union)

0-AR-2374

_____

DECISION

May 20, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to the award of Arbitrator David L. Beckman 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 alleging that the Agency violated Federal law and the parties' collective bargaining agreement by reassigning the grievant to his former position without reimbursing him for moving expenses. 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

In December 1990, the grievant was transferred to another facility for training. Subsequently, the grievant was informed that he had failed the training program at the new facility. On October 28, 1991, the grievant signed a written offer accepting a reassignment to his previous position at no expense to the Government. The Union filed a grievance in June 1992, alleging that the Agency's failure to reimburse the grievant for his moving expenses related to the second reassignment violated the parties' collective bargaining agreement and 5 U.S.C. § 2302(b)(4) and (9).(1) The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issue as follows:

(1) Under the circumstances presented, did Southern Region management violate the National Agreement in reassigning and in denying moving expenses to the Grievant[?]

(2) If so, what is the remedy?

Award at 3.

The Arbitrator found that the delay of more than seven months in filing the instant grievance was "relevant, but not dispositive of the case." Id. at 11. The Arbitrator noted that the issue of timeliness of the grievance was not raised by the Agency in its answer or in its presentation at the hearing. The Arbitrator found that an earlier grievance, decided by the Arbitrator on May 1, 1992, (Moore) raised "timely issues of interpretation which, at least arguably, affect the rights of the [g]rievant." Id. Accordingly, the Arbitrator concluded that dismissing the grievance on procedural grounds would be counterproductive to Federal policy encouraging the arbitration of labor disputes.

With regard to the merits of the grievance, the Arbitrator determined that Moore had no effect on the resolution of the instant grievance. The Arbitrator explained that, generally, arbitration awards resolve particular grievances and that a prior award may be applied to other grievances only to the extent that the other grievances are factually the same as the decided case. The Arbitrator stated that the grievants in Moore were "employees who, prior to the signing of the National Agreement in May 1989, had acted to their detriment on an implied promise that their moving expenses would be paid back to their prior duty station in the event they suffered a training failure." Id. at 13. The Arbitrator found that because Moore "applied to a special situation," it could not be applied to the instant grievance. Id. The Arbitrator explained that Moore could not require the Agency to pay the grievant's moving expenses related to his transfer following his training program failure because his original reassignment occurred after, rather than before, the effective date of the parties' agreement. The Arbitrator noted that employees are deemed to have notice of the contents of a collective bargaining agreement upon its publication. Accordingly, the Arbitrator found that, unlike the grievants in Moore, the grievant had sufficient notice of the policy change regarding the payment of moving expenses for transfers based on training program failures because the new policy was stated in Article 58, section 8 of the parties' agreement.

The Arbitrator found that under Article 58, section 8 the Agency's obligation to pay the moving expenses of employees who are reassigned following training program failure was not absolute. Rather, the Arbitrator determined that the payment of moving expenses was subject to "'conditions subsequent' to the conditions which were in existence at the time" the agreement was negotiated. Id. at 16. The Arbitrator determined that under the language of the parties' agreement, there could be no implied promise of payment if permanent change of station (PCS) funds were not available. The Arbitrator also found that the Agency had discretion to place transfers resulting from training program failures at the bottom of the priority list for allocating PCS funds and, consequently, to determine whether PCS funds were available for such transfers. In this case, the Arbitrator concluded that the Agency, in determining that there were no PCS funds available for transfers based on training program failures, did not violate the parties' agreement by failing to pay moving expenses related to the grievant's reassignment to his former position.

The Arbitrator also determined that the Agency did not violate Federal law. Because PCS funds were unavailable to pay relocation expenses, the Arbitrator concluded that although the Agency's written offer of reassignment to his previous position at his own expense was more costly to the grievant, it did not violate 5 U.S.C. § 2302(b)(4) or (9). In the Arbitrator's view, the written offer signed by the grievant represented a good faith effort by the Agency to present the grievant with "the limited options available" following his training failure. Id. at 18. Accordingly, the Arbitrator concluded that the Agency did not engage in a prohibited personnel practice, and denied the grievance.

III. Positions of the Parties

A. Union

The Union contends that the Arbitrator erroneously concluded that Moore could not be applied to the grievance in this case. The Union claims that the doctrine of res judicata prevents the Arbitrator from reaching a different conclusion from the one he reached in Moore because the issues raised and resolved in Moore were identical to those involved in the instant grievance. The Union states that the essence of the decision in Moore was that the grievants did not receive written notice of a specific Agency decision that PCS funds would not be available for training failure relocation expenses. The Union maintains that because the facts of the instant grievance are the same as those in Moore, the grievant was entitled to written notice of a specific Agency decision that his relocation expenses would not be paid in the event that he failed the training program and was reassigned to his former position.

Based on the Arbitrator's findings in Moore, the Union argues that the grievant in this case had a reasonable expectation under Article 58 that the Agency would continue its past practice of paying training failure relocation expenses until the practice was properly changed and implemented by the Agency. The Union contends that Moore required the Agency to develop procedures for implementing a new policy but that the Agency took no action indicating that there had been a change in policy. In support of its argument, the Union contends that the Office of Personnel Management (OPM) has stated that any agency decision not to authorize reimbursement of relocation expenses should be clearly communicated in advance and in writing to all applicants. The Union contends that the exhibits presented by the Agency do not establish that the grievant received written notice of a specific Agency decision that PCS funds were unavailable because the exhibits were "manufactured" nearly two years after the grievant's reassignment. Exceptions at 12. Therefore, the Union claims that it was reasonable for the grievant to believe that the policy of reimbursement for relocation expenses following a reassignment due to a training program failure would continue.

The Union maintains that the Arbitrator's finding that the language of the contract constitutes sufficient notice to employees that they would not be reimbursed for return relocation expenses is unreasonable. According to the Union, the employees have no way of determining whether PCS funds will be available to pay for relocation at a particular time because the circumstances regarding transfers are always changing and known only to management. The Union argues that if the Arbitrator's interpretation of Article 58 stands, there will be no safeguards to preclude the Agency from acting arbitrarily with respect to reimbursement benefits.

The Union also claims that the Arbitrator's finding that the payment of relocation expenses for transfers resulting from training program failures is not absolute circumvents the purpose of Article 58. In this regard, the Union argues that the award permits the Agency to defeat the terms of Article 58 by making selections without available PCS funds, which will prospectively bar bargaining unit employees who fail the training program from being considered for relocation expenses. The Union further asserts that assuming the October 28, 1991, offer establishes the date of the grievant's reassignment, PCS funds were available to pay his moving expenses. Accordingly, the Union argues that the Arbitrator's award is deficient and requests that the grievant be reimbursed for any reassignment resulting from training program failure.

B. Agency

The Agency contends that the award is not deficient because it is inconsistent with a prior award. The Agency claims that prior awards do not have precedential effect and that arbitrators are not bound by such awards unless subsequent grievances are factually the same. Contrary to the Union's argument, the Agency claims that the Arbitrator determined that the facts of the instant grievance were substantially different from those in Moore and, therefore, correctly declined to apply Moore to this case.

The Agency further contends that the principle of res judicata is not applicable in arbitration, even where the issue is similar but arose from a different incident. The Agency maintains that unless otherwise provided by the parties' agreement, prior awards are published only as guidance and are not binding as prior case law would be in a judicial forum. The Agency asserts that the Union intended to base its argument in this regard on the principle of stare decisis. According to the Agency, arbitrators are not bound by either principle. The Agency claims that the Union's exceptions constitute mere disagreement with the Arbitrator's interpretation of the parties' agreement and with his reasoning and conclusions, which provide no basis for finding the award deficient.

The Agency also claims that the award does not conflict with law and regulation. The Agency explains that the grievant was selected in accordance with merit system principles to go to another facility on the condition that he achieve fully successful performance level status. The Agency maintains that the grievant voluntarily signed the position reassignment letter, dated October 28, 1991, accepting a return to his previous facility because of his failure to achieve the full performance level. The Agency contends that the Arbitrator found no violation of 5 U.S.C. § 2302(b)(4) or (9) and that the Union's exception to the Arbitrator's finding is nothing more than an attempt to relitigate the grievance under the facts and evidence established in Moore. Accordingly, the Agency requests that the exceptions be dismissed.

Additionally, the Agency contends that the Union failed to comply with the Authority's December 23, 1992, Order directing the Union to provide copies of all the attachments to its exceptions filed with the Authority.(2) The Agency claims that certain items cited by the Union in its exceptions were not listed in the index and that other items were inaccurate or incomplete.

IV. Analysis and Conclusions

We reject the Union's contention that the doctrine of res judicata prevents the Arbitrator from reaching a different conclusion from the one he reached in Moore. It is clear that "the principle of res judicata does not apply to arbitration awards[.]" See U.S. Patent and Trademark Office and Patent Office Professional Association, 45 FLRA 40, 41 (1992). Consequently, we find that the award is not deficient because it is inconsistent with the Arbitrator's award in Moore. The Authority has held that awards are not deficient solely on the basis that they conflict with previous awards. See American Federation of Government Employees, Local 2501 and U.S. Department of Defense, Defense Logistics Agency, Defense Depot Memphis, Memphis, Tennessee, 45 FLRA 1014, 1019 (1992). Moreover, we note that the Arbitrator distinguished the facts in this case from the facts involved in Moore. In this regard, the Arbitrator found that the original transfers in Moore occurred prior to the signing of the parties' agreement. Under those circumstances, the Arbitrator found that the grievants in Moore had a reasonable expectation that they would be reimbursed for moving expenses incurred as a result of training failure transfer based on an established past practice. Unlike Moore, the Arbitrator found that, in this case, the grievant was transferred to a new facility after the parties' agreement was signed. The Arbitrator found that execution of the parties' agreement was sufficient to put the bargaining unit employees on notice that reimbursement for moving expenses resulting from a training failure transfer would be provided only if the Agency determined that PCS funds were available. Consequently, the Arbitrator concluded that Moore was not applicable to this grievance, and the Union is merely attempting to relitigate this issue. Id.

We construe the Union's exception regarding the Arbitrator's interpretation of Article 58 of the parties' agreement as an assertion that the award fails to draw its essence from the agreement. To demonstrate that an award fails to draw its essence from the agreement, 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 so 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. at 1018.

The Union has not demonstrated that the Arbitrator's interpretation of the parties' agreement renders the award deficient under any of the tests set forth above. The Arbitrator found that the Agency's obligation to pay moving expenses incurred by employees reassigned as a result of training program failure under Article 58 of the parties' agreement was subject to certain conditions, including the availability of PCS funds. In addition, the Arbitrator determined that Article 58 provided the Agency with the discretion to determine the priority by which PCS funds are allocated and, as a result, whether such funds are available to reimburse employees for moving expenses incurred as a result of a reassignment based on training program failures. Therefore, the Arbitrator concluded that the Agency did not violate the parties' agreement by granting the lowest priority in allocating PCS funds to reassignments related to training program failures or by denying payment to the grievant for moving expenses because PCS funds were unavailable for such purposes.

We find that the Union erred in relying on the statement of OPM concerning written notice of a specific agency decision not to reimburse employees for relocation expenses. The statement by OPM was given in response to a request by the Comptroller General for an advisory opinion in Eugene R. Platt-Reconsideration, 61 Comp. Gen. 156 (1981) (Platt) and was not central to the Comptroller General's decision. In Platt, the Comptroller General reaffirmed an earlier decision holding that the transfer at issue was in the interest of the Government and, therefore, that the employee was entitled to reimbursement for his relocation expenses. The Comptroller General provided some additional guidance to agencies for developing policies regarding when to authorize reimbursement for relocation expenses. However, the Comptroller General did not require that an agency provide written notice to employees of a specific agency decision not to provide reimbursement for relocation expenses.

We are aware of no law or Government-wide regulation mandating that agencies provide written notice of a specific decision not to reimburse employees for such expenses. Absent such a requirement, the opinion of OPM in Platt does not preclude a determination that the contract provision in this case was sufficient to put bargaining unit employees on notice that the Agency would not pay relocation expenses of employees reassigned because they failed the training program unless certain conditions were met. As we stated above, the Arbitrator found that those conditions were not met and, therefore, concluded that the Agency did not violate the parties' agreement by denying the grievant reimbursement for his relocation expenses. We find nothing in the Arbitrator's interpretation of Article 58 of the parties' agreement that is irrational, implausible, or unconnected to the wording of the agreement. In our view, the Union is merely disagreeing with the Arbitrator's interpretation of the parties' agreement and attempting to relitigate the issues presented to and resolved by the Arbitrator. Such disagreement provides no basis for finding the award deficient. Accordingly, we deny the Union's exceptions.(3)

V. Decision

The Union's exceptions are denied.

Appendix

Article 58 Moving Expenses

Section 8: In the event a former full performance level bargaining unit employee is unsuccessful in attaining journeyman status in a facility to which transferred in the interest of career progression, the Employer agrees to pay the moving expenses of the employee to another bargaining unit position on a one-time basis, provided:

a. the Employer desires to retain the employee;

b. a position and change-of-station funds are available within the region for such moves. Authorization of Permanent Change of Station (PCS) funds for other types of moves takes precedent over funding moves under this Section;

c. the employee is relocating to a facility to which it is primarily in the best interest of the Agency to reassign the employee.

5 U.S.C. § 2302

(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--

(4) deceive or willfully obstruct any person with respect to such person's right to compete for employment;

. . . .

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of--

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;




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