50:0116(23)AR - - Interior, Bureau of Mines, Pittsburgh Research Center and AFGE Local 1916 - - 1995 FLRAdec AR - - v50 p116
[ v50 p116 ]
The decision of the Authority follows:
50 FLRA No. 23
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF MINES
PITTSBURGH RESEARCH CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 2, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Robert A. Creo filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance and ordered the Agency to allow the grievant to complete college courses by a particular date, on an adjusted work schedule, and at Government expense.
For the following reasons, we are unable to determine whether the award is deficient under section 7122(a) of the Statute. Accordingly, we remand this case to the parties to seek a further determination from the Arbitrator.
II. Background and Arbitrator's Award
The grievant is an electronics technician in the Agency's Fire and Explosions Group. The grievant requested to enroll in four college courses on an adjusted work schedule at Government expense. The Agency denied the training request on the grounds that the courses and adjusted work schedule would not be of benefit to the Fire and Explosions Group, that the grievant did not need a Bachelor of Science degree for his current position, and that the Agency did not have a need for additional personnel with such a degree. Although the Agency had reimbursed the grievant in the past, the Agency stated that it had become necessary to scrutinize closely all requests for training because the costs of training had increased.
The Union filed a grievance challenging the Agency's refusal to approve the grievant's request. The grievance was denied and was submitted to arbitration on the following stipulated issue:
Did the Bureau violate the Agreement by denying to approve and pay for the Grievant's continued educational training?
If yes, what shall be the remedy?
Award at 16.
Before the Arbitrator, the Union contended that the Agency's refusal to approve the grievant's training request constituted a violation of a past practice and discrimination against the grievant "for his exercise of protected grievance activity . . . ." Id. at 15.
The Agency contended that it properly had denied the grievant's training request. The Agency asserted that the grievant's attendance at classes on an adjusted work schedule would have adversely affected the progress of two work projects. The Agency further disputed the Union's contention that its denial of the grievant's request constituted discrimination against the grievant.
The Arbitrator found that the Agency's refusal to approve the grievant's request violated an established past practice and constituted discrimination against the grievant for claiming reimbursement, pursuant to a settlement of a prior grievance, for previous training-related travel expenses. The Arbitrator noted the Agency's routine practice of granting training requests and the "role of the Bureau in encouraging the [g]rievant to obtain his degree." Id. at 17. The Arbitrator stated that the "invalid change in application of the training [p]olicy cannot supersede this commitment" and that the grievant did not "need, at this late date, to prove how his classes directly benefit the F&E Group, the Bureau or the U.S. Government." Id. Although the Arbitrator agreed that the Agency needed the grievant to work on two projects in spring 1993, he found, based on the Agency's concession, that it would have approved the grievant's training request "if it were not for the change in [work] priorities that [s]pring." Id.
As a remedy, the Arbitrator directed the Agency to "permit the [g]rievant to finish his degree by the end of the calendar year 1995[,]" with appropriate reimbursement pursuant to the Agency's training policy. Id. In addition, the Arbitrator directed the Agency to allow the grievant "to work a divided schedule consistent with that worked in previous years and the degree and course curriculum requirements." Id. The Arbitrator also retained jurisdiction over implementation of the award.
A. Agency's Contentions
First, the Agency contends that the award is deficient because it is inconsistent with 5 U.S.C. § 4107(c), a portion of the Government Employees Training Act, 5 U.S.C. §§ 4101-4119 (Training Act).(1) The Agency argues that the grievant's training request specifically noted that the courses were needed to complete an academic degree and "made no connection of the courses requested to any of the valid purposes of training authorized under the [Training Act]." Exceptions at 3-4. The Agency adds that its prior approvals of the grievant's training requests "must have been predicated on adequate justification to legally approve the requested training" and that those approvals constitute "neither a contract, nor a continuing obligation." Id. at 4.
Second, the Agency contends that the award is deficient under section 7106(a)(2)(B) of the Statute because it interferes with management's ability to assign work to the grievant, as well as to other employees.
B. Union's Opposition
The Union maintains that the award is consistent with the Training Act and with various provisions of the Federal Personnel Manual (FPM).(2) The Union also disputes the Agency's claim that the award requires the Agency to pay the costs of courses that have the sole purpose of allowing the grievant to earn an academic degree. The Union claims that the Agency has an established past practice of approving the type of training ordered in the remedy.
The Union further disputes the Agency's claim that the grievant's training request made no connection between the courses and a valid purpose for training under the Training Act. Noting the Agency's testimony that it would have approved the grievant's training request had it not been for a change in work priorities in spring 1993, the Union asserts that this acknowledgement by the Agency "constituted an admission against interests which effectively establishes that the requested courses otherwise meet the Bureau's criteria for approval." Opposition at 2.
The Union also disputes the Agency's contention that the award interferes with management'