50:0113(22)AR - - AFGE, Local 1923 and HHS, SSA, HQ, Baltimore, MD - - 1995 FLRAdec AR - - v50 p113
[ v50 p113 ]
The decision of the Authority follows:
50 FLRA No. 22
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION, HEADQUARTERS
January 31, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn 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 Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency improperly revoked the grievant's parking permit.
For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant filed a grievance alleging that the Agency had improperly revoked his parking permit. The grievance was submitted to arbitration, as relevant here, on the following issue, as framed by the Arbitrator:
[D]id the Agency violate the [a]greement or applicable law or regulation when it revoked [g]rievant's permit to park . . . ? If so, what shall be the remedy?
Award at 1.
The Arbitrator found that the grievant had accepted a reassignment based on his supervisor's oral assurance that he would receive parking privileges at his work location, and that the supervisor did, in fact, provide the grievant with a full-time parking permit for over 4 years. The Arbitrator also found that, after providing the Union with notice and an opportunity to bargain over a new parking policy, the Agency properly revoked all employee parking permits and reissued them in accordance with Government-wide parking regulations.
The Arbitrator rejected the Union's claim that the grievant had "negotiated a 'side deal' for a 'lifetime' parking permit . . . ." Id. at 11. In this regard, the Arbitrator found that: (1) the grievant's supervisor had no authority to issue a permanent full-time parking permit; (2) the grievant knew, or should have known, that the permit issued was subject to Agency policy and Government-wide regulations governing parking; (3) the permit was subject to review, revocation and reissuance in accordance with those regulations; and (4) under the Agency's new policy, the grievant did not qualify for a permit. The Arbitrator also stated that the agreement between the grievant and his supervisor was unenforceable under Statute of Frauds principles because it was not in writing. Finally, the Arbitrator found that the reassignment was valid when it was made and that, as the grievant had recently been promoted to a position which required little work-related travel, his need for a parking permit had further diminished.
Based on the foregoing, the Arbitrator denied the grievance.
A. Union's Contentions
The Union asserts that the award is contrary to law because the Arbitrator erred in finding that the agreement between the grievant and his supervisor was governed by the Statute of Frauds. According to the Union, this agreement was a condition of employment which, although oral, was enforceable. The Union also asserts that the award is based on a nonfact because the Arbitrator erred in finding that the grievant was promoted and no longer in the position for which he was promised a parking permit.
B. Agency's Opposition
The Agency contends that parking is a condition of employment, and that, as the Agency fulfilled its notice and bargaining obligations, it had a right to change the parking policy. The Agency also contends that the Arbitrator's finding that the grievant was promoted is neither erroneous nor central to the award.
IV. Analysis and Conclusions
The Arbitrator rejected "for several reasons" the grievant's claim that he was entitled to parking based on the oral agreement with his supervisor. Award at 12. Among those reasons was the Arbitrator's finding that enforcement of the oral agreement was inconsistent with "the principle inherent in the Statute of Frauds . . . ." Id. at 13. Separate from that reason, however, were other reasons, including that the grievant knew or should have known that his parking permit was subject to applicable regulations and that, under properly revised regulations, the grievant was not entitled to a permit. We find that the Arbitrator's statement regarding the Statute of Frauds was separate from his other reasons for denying the grievance. Therefore, even if the Arbitrator erred in his statement, a finding we do not reach herein, that error would not have changed the award. Accordingly, the Union's exception to the Arbitrator's statement does not establish that the award is deficient as contrary to law. For example, National Treasury Employees Union, Chapter 68 and U.S. Department of the Treasury, Internal Revenue Service, Andover Service Center, 48 FLRA 1329, 1335-36 (1994).
We also reject the Union's claim that the award is based on a nonfact. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993). The Union has not established that the disputed finding is clearly erroneous or, if it is, that it is also central to the award. Accordingly, we deny this exception.