U.S. Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association

[ v55 p919 ]

55 FLRA No. 152

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

0-AR-3116

_____

DECISION

September 30, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Steven Briggs 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 Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator sustained a grievance over the Agency's refusal to pay permanent change of station ("PCS") moving expenses associated with the relocation of the grievant's duty station. We find that the Agency has not established that the award is deficient. Accordingly, we deny the exceptions.

II.     Background and Arbitrator's Award

A.     Facts Giving Rise to This Grievance

      The grievant is an Air Traffic Control Specialist who was assigned to work at the new Terminal .

      Radar Approach Control Facility ("TRACON") when it was moved in October, 1996, from its old location at O'Hare Airport in Chicago to its present location at Elgin, Illinois. Prior to the relocation, the grievant requested that the Agency grant him PCS expenses to pay for moving [ v55 p920 ] his home closer to the new TRACON. [n1]  As justification for his request, the grievant stated that a move was necessary because his commute time to the new TRACON would increase by 20 minutes. The instant dispute arose when the Agency denied the grievant's request for PCS expenses.

      In ordinary circumstances, the Agency's practice is to consider granting employee requests for PCS expenses when the distance from the employee's old residence to the new duty station is at least 10 miles greater than from the old residence to the old duty station. Even when employee requests do not meet this 10-mile rule, however, the Agency has discretion to authorize granting PCS expenses. In this case, the Agency determined that the distance from the grievant's old residence to the new TRACON was not 10 miles greater than from his old residence to the old TRACON.

      As support for denying the grievant's request, the Agency pointed out that the grievant's situation did not satisfy the 10-mile rule, and stated that "[w]e do not find 20 minutes to be an unreasonable increase" in commute time. Arbitration Award ("Award") at 4-5. The grievance was submitted to arbitration.

B.     Arbitrator's Award

      The Arbitrator set forth the following issue as stipulated by the parties:

Did the FAA violate the collective bargaining agreement and/or the laws, rules and regulations of the Agency by denying [the grievant] a reimbursement for moving expenses? If so, what is the remedy?

Award at 5.

      The Arbitrator then set forth as relevant to the dispute, in pertinent part: the FTR, 41 C.F.R. § 302-1.7; Department of Transportation ("DOT") Order 1500.6A, Chapter 5, Section 1; and Federal Aviation Administration ("FAA") Order 1500.14A Sup 10-Chapter 5, Paragraph 5-0102b-S1-Policy. [n2]  The Arbitrator also set forth as relevant to the dispute, in pertinent part, Article 84, § 3 of the parties' collective bargaining agreement ("agreement"), [n3]  and an April 8, 1993 Memorandum of Understanding ("MOU") between the parties. [n4] 

      Next, the Arbitrator summarized the arguments of the Union and the Agency. According to the Arbitrator, the Union argued that the Agency violated Article 84, Section 3 of the agreement by failing "to apply its rules, regulations, directives and orders in a fair and equitable manner." Id. at 13. In support, the Union claimed that the Agency granted PCS expenses to coworkers at the Chicago TRACON whose cases were similar to the grievant's. The Union also alleged that the Agency "severely hampered" the Union's ability to represent the grievant by denying the Union's request for information regarding the Agency's PCS decisions for Denver employees. Id. at 11-13.

      According to the Arbitrator, the Agency claimed that its decision to deny the grievant's request for PCS expenses was consistent with the parties' agreement and applicable laws. In support, the Agency claimed that all of the employees at the Chicago TRACON who were granted PCS expenses satisfied the "10-mile rule." Id. at 11. The Agency also claimed that it "legitimately refused" to provide the information concerning the Agency's PCS decisions for Denver employees because it was "not relevant" to the grievance. Id. at 10-11.

      In resolving the grievance, the Arbitrator stated that he had "no authority to disturb" the Agency's interpretation of the "rules, regulations and authorities which govern PCS eligibility determinations[,]" as long as the interpretation "is reasonable[ ] and it is not arbitrary, capricious or discriminatory[.]" Award at 14-15. In this regard, the Arbitrator determined that the Agency's decision was "within the broad bounds of reasonable- [ v55 p921 ] ness[,]" and was not arbitrary or capricious. Id. at 15. The Arbitrator also determined, however, that the grievant was "discriminated against" because the Agency granted PCS expenses to a coworker at the Chicago TRACON who was similarly situated to the grievant. Id. at 17. The Arbitrator concluded that the Agency's decision to deny the grievant's request for PCS expenses violated Article 84, Section 3 of the agreement.

      Specifically, the Arbitrator found that "exactly the same" back roads led from the grievant's, and his coworker's, old residences to the new TRACON. Id. at 18. When using the back roads as a measure, neither employee's situation met the "10-mile rule." In contrast to the grievant's situation, however, the Agency calculated the applicable mileage for the coworker by using the available expressways as a measure, rather than the back roads that were used to calculate the mileage in the grievant's case. Consequently, the expressway distance from the coworker's home to the new TRACON satisfied the "10-mile rule." Id. The Arbitrator determined that, "[h]ad the [g]rievant been treated the same as [the other employee], he too would have qualified for PCS benefits because the mileage from the old residence to the new duty station would have been more than ten miles greater than from the old residence to the old duty station." Id. Consequently, the Arbitrator found that "the [g]rievant was treated discriminatorily, in violation of Article 84, Section 3." Id. at 20. In connection with this ruling, the Arbitrator explained that "[d]iscriminatory treatment occurs when an employee is treated differently from those similarly situated." Id. at 17.

      Moreover, the Arbitrator found that the Agency had submitted "conflicting documentation" with regard to whether a second similarly situated coworker had been granted PCS expenses. Id. at 18. The Arbitrator stated that this evidence "strengthened the Union's claim that the Grievant was treated in a discriminatory fashion." Id. In addition, the Arbitrator stated that the Agency's refusal to provide the Union with information concerning PCS expenses granted for Denver employees gave him "further suspicion" about the way the grievant was treated. Id. Based on the parties' MOU, the Arbitrator found that the parties intended to "administer PCS benefits in like fashion" for Denver and Chicago employees who were affected by their respective TRACON relocations. Id. at 19. Consequently, the Arbitrator disagreed with the Agency's assertion that the Denver data were "not relevant" to the grievant's situation in Chicago. Id.

      In terms of a remedy, the Arbitrator ordered the Agency to "[p]rovide the [g]rievant with any and all moving expenses and benefits he would have received but for the Agency's failure to find him eligible for reimbursement for moving expenses;" and "[p]rovide the . . . reimbursements retroactively to the dates the [g]rievant's eligible moving expenses were incurred, with interest at the prevailing I.R.S. rate, and in accordance with the provisions of 5 U.S.C. § 5596, the Back Pay Act and 5 C.F.R. § 550.805 and § 550.806." Id. at 21. The Arbitrator retained jurisdiction for a period of 90 days in order to resolve any disputes concerning the remedy.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that under the FTR, "the Agency was justified in denying benefits to [the] grievant and the award is contrary to law." Exceptions at 3. In particular, the Agency asserts that a necessary condition for authorization of PCS benefits is that the employee's relocation of residence must be "incident to" the TRACON relocation. Id. The Agency maintains that the grievant's proposed move was not "incident to" the TRACON relocation because: (1) "the driving distance from the grievant's residence to his new duty station (Elgin) was closer than his commute to his former duty station (Chicago)[,]" and (2) "a four to 20 minute increase in commuting time was not unreasonable." Id. Therefore, the Agency claims that the grievant was "not authorized" PCS benefits, and that the Arbitrator had "no basis" to order the Agency to expend benefits unless the Agency's action was "erroneous, arbitrary or capricious." Id. at 4. In support, the Agency cites to two opinions of the Comptroller General, Rodney T. Metzger, B-217916 (Aug. 26, 1985), and David E. Meisner, B-187162 (Feb. 9, 1977).

      Next, the Agency claims that the award should be set aside because "the Arbitrator made a determination on an issue not before him in his finding of discrimination." Exceptions at 7. Specifically, the Agency alleges that the grievant did not meet the "the legal burden of persuading the Arbitrator that the [g]rievant was the subject of intentional discrimination" under Title VII of the Civil Rights Act. Id. at 6. In support, the Agency cites Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

      Finally, the Respondent claims that "the Arbitrator's ultimate determination of discrimination[,]" based on "his unfounded, but alleged, suspicions regarding the Agency's denial of information of the Denver Airport moves[,]" provided "no basis" for the award. Exceptions at 7. The Agency claims that the award should be [ v55 p922 ] set aside because the Arbitrator's decision was based on "limited or incomplete evidence." Id.

B.     Union's Opposition

      The Union argues that the Arbitrator properly determined that the Agency violated Article 84, Section 3 of the agreement and that the remedy is not contrary to law.

      First, the Union asserts that the Arbitrator had authority to enforce the parties' agreement. On this issue, the Union states that the Agency's "authority and discretion is limited by" the parties' agreement, which "requir[ed] the Agency to exercise its discretion, in a fair and equitable manner." Opposition at 7. In support, the Union cites Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, AFL-CIO and American Federation of Government Employees, Local 2237, AFL-CIO and Federal Employees Metal Trades Council, Long Beach, California, 7 FLRA 362 (1981). The Union argues that the award "corrects" "the [A]gency's failure to exercise its discretion - consistent with the parties['] CBA -- in a fair and equitable manner[.]" Opposition at 8.

      Next, the Union argues that the fact the Arbitrator used the term "discriminate" in resolving the stipulated issue is not grounds for overturning the award. Rather, the Union states that "it is clear from the award and the record that the issue before the Arbitrator" pertained to a contract violation and not a "Title VII discrimination action." Id. at 9-10. The Union concludes that the Agency's arguments regarding the Arbitrator's choice of language in resolving the dispute provide "no basis" for finding that the Arbitrator exceeded his authority. Id. In support, the Union cites Social Security Administration and American Federation of Government Employees, AFL-CIO, Local No. 1923, 5 FLRA 258 (1981).

      Finally, the Union argues that the Agency's exceptions should be dismissed as "no more than disagreement with the Arbitrator[`]s findings of fact, reasoning, and conclusion on the evidence and testimony before him." Opposition at 14. In support, the Union cites American Federation of Government Employees, Council 236 and General Services Administration, National Capital Region, 12 FLRA 236 (1983).

IV.     Analysis

A.     The Award Is Not Contrary to Law, Rule, or Regulation

      The Agency claims that because its actions were consistent with the FTR, the award is contrary to law. Under section 7122(a)(1) of the Statute, an arbitration award will be found deficient if it conflicts with any law, rule or regulation. Overseas Education Association and U.S. Department of Defense Dependents Schools, Arlington, Virginia, 51 FLRA 1246, 1251 (1996). The Authority reviews questions of law raised by the award and the Agency's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). 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.

      The principles governing short-distance relocations of transferred employees are contained in the FTR, 41 C.F.R. § 302-1.7(a), which constitutes a Government-wide regulation. See American Federation of Government Employees, Council 163 and American Federation of Government Employees, Local 2551 and U.S. Department of Defense, Defense Contract Audit Agency, 54 FLRA 880, 886 (1998) (DCAA). The FTR provides that when a change in duty station involves a short distance, transportation expenses for a relocation, i.e., a change of residence, shall be authorized only when the agency determines that the relocation was incident to the change of official station. Factors to consider include: commuting time and distance between the employee's residence at the time of notification of transfer and his/her old and new posts of duty as well as the commuting time and distance between a proposed relocation site and the new post of duty. Section 302-1.7 states further that a relocation normally should not be considered as "incident to" a change in duty stations unless the one-way commuting distance from the old residence to the new duty station is at least 10 miles greater than from the old residence to the old duty station. Even then, circumstances surrounding a particular case may suggest that the move of residence was not incident to the PCS.

      The Comptroller General has determined that he will not overturn an agency's determination concerning [ v55 p923 ] PCS expenses unless it can be shown that the agency's decision was "clearly erroneous, arbitrary, or involved an abuse of discretion." DCAA, 54 FLRA at 886, citing Comp. Gen. Decision B-256350 (1994). In concurrence with the Comptroller General's standard of review, the Authority will not set aside an arbitration award reviewing an agency determination concerning PCS expenses unless it can be shown that the arbitrator ruled incorrectly on whether the agency's payment determination was clearly erroneous, arbitrary, or constitutes an abuse of discretion. DCAA, 54 FLRA at 888.

      Here, the Arbitrator determined that the Agency's decision to deny the grievant's request for PCS expenses was "within the broad bounds of reasonableness[,]" and was not arbitrary or capricious. Award at 15. However, the Arbitrator based the award upon a determination that the Agency's decision was discriminatory. In this regard, the Arbitrator found that the Agency had treated the grievant differently from another similarly situated employee who had received PCS benefits, and that if "the grievant [had] been treated the same . . . he too would have qualified for PCS benefits[.]" Id. at 18. Consequently, the Arbitrator held that "the [g]rievant was treated discriminatorily, in violation of Article 84, Section 3" of the agreement. Id. at 20.

      On de novo review, we find that the Arbitrator's determination that the Agency's decision was discriminatory under Article 84 is, in effect, a finding that the Agency abused its discretion in exercising its authority under the FTR. In support of its argument, the Agency offers no evidence that the Arbitrator's finding was incorrect in this case. Accordingly, the Agency has not shown that the award is inconsistent with the FTR and, therefore, has not shown that the award is deficient under section 7122(a) of the Statute. We deny the exception.

B.     The Arbitrator Did Not Exceed His Authority

      The Agency claims that the award should be set aside because "the Arbitrator made a determination on an issue not before him in his finding of discrimination." Exceptions at 7. We construe this argument as a claim that the Arbitrator exceeded his authority.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See U.S. Department of the Army Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 924 (1997).

      The issue as stipulated to the Arbitrator included the issue of whether the Agency "violate[d] the collective bargaining agreement . . . by denying [the grievant] reimbursement for moving expenses[.]" Award at 5. The Arbitrator resolved that issue by "conclud[ing] from the record that the Grievant was treated discriminatorily, in violation of Article 84, Section 3." Id. at 20. As noted by the Arbitrator, Article 84, Section 3 states that "[t]he Employer agrees to apply its rules, regulations, and directives and orders in a fair and equitable manner . . . . " Id. at 9. The Arbitrator clearly found that the Agency violated Article 84, Section 3 by granting the request of another, similarly situated, employee for PCS expenses, but denying the request of the grievant. This finding is consistent with the Arbitrator's statement that "[d]iscriminatory treatment occurs when an employee is treated differently from those similarly situated." Id. at 17. Nothing in the record supports the Agency's claim that the Arbitrator deviated from the stipulated issue by finding that the Agency violated Title VII of the Civil Rights Act by denying the grievant's request. Accordingly, the Agency has not shown that the Arbitrator exceeded his authority by resolving an issue that was not submitted to arbitration. See U.S. Information Agency, Voice of America and American Federation of State, County and Municipal Employees, Local 1418, 55 FLRA 197, 198 (1999). We deny the exception.

C.     The Award Is Not Based on a Nonfact

      The Agency argues that the Award should be set aside because the Arbitrator erroneously concluded that the Agency's PCS decisions for Denver employees were relevant to the grievant's situation in Chicago. We construe the Agency's argument that the Arbitrator erroneously evaluated the evidence as a claim that the award was based on a nonfact. See, e.g., National Federation of Federal Employees, Local 186 and U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Education Programs, Flandreau Indian School, Flandreau, South Dakota, 55 FLRA 59, 60 (1999).

      To establish that an award is based on nonfacts, the appealing party must demonstrate that the central facts underlying the award are clearly erroneous, but for which a different result would have been reached by the arbitrator. See U.S. Department of the Air Force, Lowry [ v55 p924 ] Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Further, an appealing party may not challenge the arbitrator's interpretation and application of a collective bargaining agreement as a nonfact. See National Federation of Federal Employees, Local 561 and U.S. Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 52 FLRA 207, 210 (1996); and National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 92 (1995).

      The Agency bases its exception upon a claim that the Arbitrator erroneously concluded that the Agency's "denial of the Denver information" was relevant to the grievance. Exceptions at 7. In this regard, the Agency claims that the Arbitrator's relevancy finding was based upon "unfounded, but alleged, suspicions[.]" Id. As connected to this argument, the Agency concludes that the Arbitrator's ultimate finding of discrimination was based upon "limited and incomplete evidence[.]" Id. At arbitration, the parties disputed whether the Denver evidence was relevant to the grievance. Accordingly, the Agency has not proven that the award was based on a nonfact. We deny the exception.

V.     Decision

      The Agency's exceptions are denied.

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