54:0706(74)AR - - National Air Traffic Controllers Association and DOT, FAA, Southwest Region, Dallas, TX [ DOT = Department of Transportation; FAA = Federal Aviation Administration ] - - 1998 FLRAdec AR - - v54 p706



[ v54 p706 ]
54:0706(74)AR
The decision of the Authority follows:


54 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

SOUTHWEST REGION

DALLAS, TEXAS

(Agency)

0-AR-2920

_____

DECISION

August 11, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator A. Dale Allen, Jr. 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 over the Agency's refusal to pay permanent change of station (PCS) travel expenses associated with the grievant's transfer from Southern California to Dallas, Texas.

For the reasons that follow, 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, a GS-14 Air Traffic Controller, was working in Southern California. He applied for and was selected noncompetitively for a vacant GS-14 Air Traffic Controller position in Dallas, Texas. The vacancy announcement for the position in Dallas stated that relocation expenses would not be paid. Although the grievant applied for the opening pursuant to the vacancy announcement, the Agency selected him for the position as a noncompetitive ingrade transfer.

At the time of his selection, the grievant was informed that because the move was for his benefit, the Agency would not pay any expenses related to his relocation. The grievant decided to take the position and seek reimbursement of his expenses later, fearing that if he insisted on relocation expense payment he would not be selected for the position. After his arrival in Texas, the grievant requested reimbursement for his relocation expenses. The Agency denied the request.

The grievant filed a grievance, which was unresolved, and the matter was submitted to arbitration. The following issue was submitted to the Arbitrator:

Was the Agency correct when it made the determination to deny [the grievant PCS] travel expenses associated with his transfer from Southern California to Dallas, Texas[?] If not, what is the appropriate remedy?

Award at 3.

The Arbitrator reviewed applicable statutory provisions and found that under 5 U.S.C. § 5724(a) an agency "shall pay" travel expenses of an employee transferred in the interest of the Government.(1) The Arbitrator also found that 5 U.S.C. § 5724(h) provides that when a transfer is made primarily for the convenience or benefit of an employee, or at his request, his travel expenses may not be paid from Government funds. Accordingly, the Arbitrator determined that it was his task to determine whether the move "was accomplished primarily at the request, benefit, and/or convenience" of the grievant, or if it was done in major part in the best interest of the Agency. Award at 10.

The Arbitrator stated that "[t]he overwhelming weight of evidence" caused him to conclude that "this transfer came about, primarily, at the request of, and for the benefit of [the grievant], following numerous warnings from the Agency that his move would not be paid for by the [Agency]." Id. The Arbitrator provided several reasons for his conclusion.

First, the Arbitrator found that the grievant initiated the action to apply for the vacancy. According to the Arbitrator, the grievant visited the Dallas facility "'to promote [himself] for the job . . . , make [himself] known to be interested.'" Id. at 11. The Arbitrator found that Agency management at Dallas did not seek out or recruit the grievant.

Second, the Arbitrator concluded that "[t]here is ample evidence that [the grievant] wanted to make the move to Dallas for his personal benefit." Id. The Arbitrator noted that when the grievant visited the Dallas facility, he mentioned that Dallas area housing and state taxes were less than Southern California. The Arbitrator also noted that the grievant claimed that he moved to Dallas to further his career. The Arbitrator determined that the grievant's willingness to move to Dallas after being informed that the Agency would not pay relocation expenses "demonstrates that the [g]rievant possessed a very strong desire to want to move to the Dallas area[.]" Id. at 12.

Third, the Arbitrator inferred from several factors that the transfer was primarily for the employee's benefit. Specifically, the Arbitrator found that the grievant's transfer from California to the Dallas facility was a lateral transfer, not a promotion or "career enhancing" action. The Arbitrator found that both the California and Dallas facilities had the same level of traffic, that is, the Dallas airport was not a more difficult or complex assignment. The Arbitrator stated that the term "'career enhancing'" has an Agency "definition," and "it was uncontested that [the grievant] did not qualify under any one of [the definition's four] categories." Id. at 13.

Moreover, in this regard, the Union argued before the Arbitrator that the grievant's ingrade reassignment could not have been considered an Article 61 voluntary request for transfer,(2) because there was no "Article 61" notation on the grievant's application. The Union contended that because there was no "Article 61" notation, there was no voluntary request for transfer and, therefore, the transfer was not made at the request of the grievant. The Arbitrator stated that he reviewed Article 61 in its entirety. While finding that it was the grievant's responsibility to make such a notation, the Arbitrator found that its absence was not dispositive of whether the Agency could treat an application as a request for voluntary transfer. Therefore, the Arbitrator held, the Agency could reasonably have considered the grievant's application under the vacancy announcement as a request for an Article 61 lateral transfer, which is always voluntary.

Fourth, the Arbitrator found that well before his transfer, the grievant had been informed in several ways that the Agency was not going to pay his relocation expenses. The Arbitrator noted that the vacancy announcement itself stated that relocation expenses were not available. The Arbitrator found that the unavailability of relocation expenses "became a condition of employment which [the grievant] accepted in exchange for gaining the position." Id. at 14.

Fifth, the Arbitrator stated that he was convinced by the Agency that the grievant's transfer to Dallas was not dictated, primarily, by the Agency's unusual need or interest in acquiring his services. The Agency asserted, before the Arbitrator, that Dallas is a desirable assignment location, noting that about 40 applicants had submitted bids for the Dallas vacancy, even though the vacancy announcement stated that there would be no relocation expenses paid. The

Arbitrator found that the grievant's willingness to relocate, without any promise of reimbursement for relocation expenses, "demonstrates that the transfer came about 'primarily' at the request of, and for the benefit of [the grievant], and not because it was of key interest to the Agency." Id. at 16. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

The Union disputes the Arbitrator's finding that the grievant initiated the action for a transfer primarily for his own benefit. The Union contends that the Agency initiated the action by publishing the vacancy announcement, and that by erroneously assuming that the grievant initiated the transfer, the Arbitrator based his opinion on a nonfact.

The Union also contends that the Arbitrator's interpretation of Article 61, regarding voluntary requests for ingrade reassignment, ignored expert testimony from the Union's President as to the operation of Article 61 and, thus, fails to draw its essence from that provision. The Union asserts that employees may receive relocation expense reimbursement under an Article 61 voluntary ingrade reassignment.(3)

Further, the Union contends that the Arbitrator failed to properly consider the fact that the Agency solicited candidates for the Dallas position. The Union argues that because the Agency solicited candidates, it established a Governmental interest in the transfer of an employee to fulfill that need and, therefore, the grievant's relocation expenses should be reimbursed consistent with 5 U.S.C. § 5724(a).

Additionally, the Union argues that the Arbitrator erroneously concluded that section 5724(h), providing that an Agency may not pay an employee's expenses when a move is primarily for the employee's benefit, bars payment of relocation expenses. The Union contends that the Arbitrator based this conclusion on a nonfact, that is, that the grievant initiated the transfer action. The Union notes that section 5724(h) allows an agency "some latitude" to reimburse an employee's expenses when a transfer is made primarily for the convenience of the employee, and such reimbursement should be made here. Exceptions at 6.

Finally, the Union contends that a condition of employment was placed on the grievant--that he pay his own relocation expenses--that was not placed on other employees, and that this violates the merit principles set forth at 5 U.S.C. § 2301(b)(1). The Union asserts that because the Agency has paid for other lateral reassignments, forcing the grievant to pay the relocation expenses makes the award contrary to law.

B. Agency's Opposition

The Agency asserts that to support a nonfact argument, it must be shown that the fact in question is a matter which is objectively ascertainable and is the fact upon which the award is based. The Agency contends that the Union has failed to identify any misapprehension or error by the Arbitrator. The Agency also asserts that the question of interpretation of the agreement is a question solely for the Arbitrator because it is the Arbitrator's construction of the agreement for which the parties have bargained. Relying on Comptroller General decisions, the Agency contends that there is no automatic entitlement to reimbursement for an employee's change of station. The Agency asserts that the Arbitrator correctly interpreted the statutes governing the transfer of employees and the regulations that implement the law.

IV. Analysis and Conclusions

A. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the excepting party 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. 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 (1993). A party cannot establish that a nonfact exists where a matter was disputed below. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997).

The Arbitrator made findings of fact that the grievant initiated the action that brought about his transfer to the Dallas facility and that the transfer was primarily for the grievant's benefit. We will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. See id., 53 FLRA at 40. Since the Arbitrator made factual findings based on a matter that was disputed before him, there is no basis on which to find his award deficient.

B. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement

The question before the Arbitrator involved the denial of reimbursement of PCS expenses under applicable travel and moving expense laws and regulations. The grievance did not allege a violation of any agreement provision. Moreover, the agreement provisions referred to in the exception address a procedure for voluntary application for ingrade reassignment (Article 61) and the parties' merit promotion provision on acceptance of lateral reassignment applicants for vacancy announcements (Article 42). Neither Article 61 nor Article 43 concern PCS expense payment.

The Arbitrator's determination that the parties' negotiated agreement provisions do not support the Union's claim concerning entitlement to PCS expenses was not implausible, irrational, or unconnected to the agreement's wording. Accordingly, the award does not fail to draw its essence from the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

C. The Award Is Not Contrary to 5 U.S.C. §§ 5724 and 2301

As this exception involves the award's consistency with law, we review the questions of law raised by the exception and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1. Section 5724(h)

Section 5724(h) provides that an agency may not pay an employee's relocation expenses, if the move is primarily for the employee's benefit. The Arbitrator considered all of the relevant information in the record and concluded that the grievant's transfer was primarily for the employee's benefit.

We note that the Comptroller General considers three "rules" with regard to determinations of whether under section 5724(h) a transfer is primarily in the interest of the Government or primarily for the convenience or benefit of the employee: (1) if an employee has taken the initiative in obtaining a transfer to a position in another location, then an agency usually considers such transfer as being made for the convenience of the employee or at his request; (2) if an agency recruits or requests an employee to transfer to a different location, then an agency will regard such transfer as being in the interest of the Government; or (3) if an agency orders the transfer and the employee has no discretion in the matter, then the employee is entitled to reimbursement of moving expenses. Comp. Gen. Decision B-199943 at 2.

In this case, the Arbitrator determined that the grievant initiated the action and that the transfer was primarily for the grievant's benefit. As the Arbitrator also found, the Agency did not recruit the grievant to transfer to Dallas nor did the Agency order the grievant transferred. Accordingly, consistent with the Comptroller General's construction of section 5724(h), the Arbitrator correctly determined that the Agency did not violate law when it denied the employee's request for reimbursement of his PCS expenses.

Upon de novo review, we find that, based on his factual findings to which we defer, the Arbitrator properly denied the grievance on the basis that the grievant had initiated the action, and that the transfer was primarily for the grievant's own benefit. As stated above, under section 5724(h), an agency may not pay an employee's relocation expenses, if the move is primarily for the employee's benefit. The Arbitrator found that because the grievant had initiated the action and because the transfer was primarily for the grievant's benefit, under section 5724(h), the Agency could not pay the grievant's relocation expenses. Because the Arbitrator's award is not inconsistent with section 5724(h), the exception provides no basis to find the award deficient under section 7122(a) of the Statute.

2. Section 2301(b)(1)

The Union also claims that the award is inconsistent with the merit system principles set forth in section 2301(b)(1). Upon de novo review, we determine, based on the Arbitrator's findings of fact to which we defer, that the award is not inconsistent with section 2301(b)(1). The Arbitrator noted that the vacancy announcement stated that relocation expenses were not available. Therefore, no special conditions were placed on the grievant that would not have also been applicable to any other employee selected for the Dallas facility position. Moreover, the Authority has held that merit system principles are hortatory and are not self-executing. See, e.g., U.S. Department of the Army, Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey and National Federation of Federal Employees, Local 1437, 48 FLRA 873, 881 (1993). For these reasons, we conclude that the award is not contrary to section 2301(b)(1).

V. Decision

The Union's exceptions are denied.

APPENDIX

5 U.S.C. § 2301 states, in pertinent part:

. . . .

(b) Federal personnel management should be implemented consistent with the following merit system principles:

(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.

5 U.S.C. § 5724 states, in pertinent part:

(a)(1) Under such regulations as the President may prescribe and when the head of the agency concerned or his designee authorizes or approves, the agency shall pay from Government funds . . . the travel expenses of an employee transferred in the interest of the Government from one official station or agency to another for permanent duty . . .

. . . .

(h) When a transfer is made primarily for the convenience or benefit of an employee . . . or at his request, his expenses of travel . . . may not be allowed or paid from Government funds.

Article 42. Promotions, of the parties' agreement states, in pertinent part:

Section 9. Promotion plan announcements for full performance level positions within the unit shall include the statement, "Ingrade/downgrade and cross-option applications will be accepted." The Employer retains the right to select promotion candidates.

Article 61. Procedures for Voluntary Application and Internal Placement, of the parties' agreement states, in pertinent part:

Section 1. Em