United States Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association (Union)

[ v63 p15 ]

63 FLRA No. 7

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
(Union)

0-AR-4021

_____

DECISION

November 12, 2008

_____

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Marcia Greenbaum filed by the Agency under § 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. [n1] 

      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 grievants' duty station from Boston, Massachusetts, to Merrimack, New Hampshire. For the reasons that follow, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The Agency decided to relocate its radar facility, including personnel, at Logan Airport in Boston, Massachusetts, to a new facility in Merrimack, New Hampshire. The parties agreed to a Memorandum of Understanding (MOU) regarding "permanent change of [duty] station . . . moves" related to the relocation of the radar facility, including entitlement to PCS moving expenses, which are paid to employees who relocate their permanent residence "incident to the change of official [duty] station[.]" Award at 16. The preamble to the MOU provides that it "shall be read in conjunction with" the parties' term collective bargaining agreement. Id.

      Prior to the relocation of the Boston radar facility, the Agency determined that it needed to hire four additional air traffic controllers and train them in Boston for the new facility in Merrimack. The Agency posted a vacancy announcement for the positions, which stated that the Agency would pay "a fixed relocation payment in the amount of $27,000[.]" Id. at 18. The vacancy announcement also stated that the radar facility in Boston was scheduled to relocate to Merrimack in February 2004. Id. at 23.

      The grievants applied for the positions, and the Agency selected them. At the time of their selection, the grievants were assigned to duty stations in Virginia, Rhode Island, Connecticut, and Florida. Prior to accepting the offers for the positions in Boston, the grievants were assured in writing by an Agency manager that, in addition to paying PCS moving expenses associated with the relocation of their duty stations to Boston, the Agency also would pay PCS moving expenses associated with the relocation of their duty station from Boston to Merrimack. Id. at 8, 22-23. The grievants accepted the positions on that basis.

      In May 2003, the grievants relocated their residences from Virginia, Rhode Island, Connecticut, and Florida to Boston. The grievants applied for, and received, payment for PCS moving expenses associated with the relocation of their duty stations to Boston.

      In February 2004, the Agency relocated the radar facility from Boston to Merrimack. Thereafter, the controllers relocated their residences from Boston to Merrimack. The grievants requested payment for PCS moving expenses associated with the relocation of their duty station from Boston to Merrimack. The Agency denied the requests for PCS moving expenses on the basis that Article 58, Section 18 of the parties' collective bargaining agreement precludes two payments for PCS moving expenses within a twelve-month period.  [n2] 

      [ v63 p16 ] The Union filed a grievance, which was not resolved and was submitted to arbitration. The Arbitrator framed the issues as follows:

1.      Did the Agency improperly deny [PCS] funds to the four grievants when their duty station was changed from Logan Airport in Boston, Massachusetts as a result of facility relocation to Merrimack, New Hampshire[?]
2.     If so, what shall be the appropriate remedy?

Id. at 2.

      The Arbitrator concluded that the Agency improperly refused to pay PCS moving expenses associated with the relocation of the grievants' duty station from Boston to Merrimack. The Arbitrator stated that the issue before her was "whether the [g]rievants are entitled to receive two PCS payments, notwithstanding that the two moves were within a 12-month period." Id. at 36.

      Citing the definition of "temporary change of station" in the Agency's travel regulations, the Arbitrator concluded that the change of the grievants' duty stations from their previous duty stations to Boston and then from Boston to Merrimack constituted two "permanent" changes of duty stations. Id. Next, the Arbitrator found that the two permanent changes of duty stations were "not at the option of the employee[s], but rather [were] a requirement of the Agency[.]" Id. at 37. The Arbitrator explained that an Agency manager "admitted that he would not allow a one-time move to New Hampshire, but required two relocations." Id.

      The Arbitrator ruled that the limitation of the payment of PCS moving expenses to one move within a twelve-month period contained in Article 58, Section 18 of the parties' collective bargaining agreement did not apply because the relocation of the grievants' residences from Boston to Merrimack was involuntary, as a result of the Agency's decision to relocate the grievants' duty station from Boston to Merrimack. Id. at 39-40. The Arbitrator interpreted Article 58, Section 18 to apply to a voluntary relocation of residence as a result of an employee's decision to apply for and accept a position at a different duty station. In so interpreting Article 58, Section 18, the Arbitrator noted the following advice to management from the Agency's legal counsel in Washington, D.C.:

This CBA article does not contemplate the situation presented in you[r] e-mail. The CBA is intended for those situations where [a controller] receives a PCS into one duty location and then bids out on another facility prior to fulfilling 12 months as a certified [c]ontroller. The CBA does not apply as in this case, when the facility and [air traffic control] function are being moved by the Agency and is out of the employee's control.

Id. at 38. In the Arbitrator's view, the grievance

was a one-time situation brought about by management's imposition of certain requirements, and not one that was contemplated by the drafters of the contract, who wrote this language to meet situations where the moves are at the request of the employee, who bids for a position, rather than closures and relocations that are a requirement of management and governed by [Article 58,] Section 3. [n3] 

Id. at 39-40 (footnote added).

      To resolve the grievance, the Arbitrator concluded that, under the doctrine of detrimental reliance, the grievants had a right to rely on the Agency's assurance that they would receive two PCS payments associated with two permanent changes of duty stations. Therefore, the Arbitrator determined that the Agency had improperly refused to pay PCS moving expenses to the grievants when their duty station was changed from Boston to Merrimack. Accordingly, the Arbitrator sustained the grievance. As a remedy, the Arbitrator ordered the Agency to pay each grievant "$27,000 plus interest at the appropriate federal rate(s)." Id. at 43.

III.      Agency's Exceptions

      The Agency contends that the award fails to draw its essence from the parties' collective bargaining agreement because it manifests a disregard of Article 58, Section 18. Specifically, the Agency asserts that Article 58, Section 18 limits the payment of PCS moving expenses to one move within a twelve-month period.

      The Agency also argues that the Arbitrator erred by relying on Agency travel regulations to support her determination that the grievants were entitled to PCS moving expenses because Article 58, Section 18 supersedes these regulations. In support, the Agency cites Article 102, Section 1 of the collective bargaining  [ v63 p17 ]  agreement. [n4]  The Agency further argues that the Arbitrator erred by relying on the parties' MOU. The Agency notes that the MOU provides that it "shall be read in conjunction with the Parties' 1998 Collective Bargaining Agreement" and claims that the parties' collective bargaining agreement limits the payment of PCS expenses to once during a twelve-month period. Exceptions at 4 (emphasis omitted).

      In addition, the Agency contends that the award is based on nonfacts. Specifically, the Agency asserts that the Arbitrator disregarded the parties' stipulation that the grievants responded to a bid and, therefore, voluntarily sought the position in Boston. The Agency also asserts that the Arbitrator disregarded the parties' stipulation that the grievants were put on notice that the facility relocation to Merrimack was scheduled for, and completed in, February 2004. Accordingly, the Agency claims that the award is deficient because the grievants "knew or should have known that [bidding for the positions in Boston] constituted the eventual assignment to Merrimack[.]" Id.

      The Agency further contends that the award is contrary to law. Citing OPM v. Richmond, 496 U.S. 414 (1990) (OPM), the Agency asserts that it is not bound by the incorrect information provided by Agency management to the grievants.

      Finally, the Agency contends that, if the Authority finds that the grievants were entitled to PCS moving expenses under Article 58, Section 3, then the Arbitrator exceeded her authority by granting additional PCS moving expenses within a twelve-month period. The Agency reiterates that Article 58, Section 18 limits the payment of PCS expenses to once during a twelve-month period.

IV.      Preliminary Matter

      The Authority issued an Order to the Union to show cause why its opposition, which was required to have been filed no later than November 28, 2005, but was not filed until December 3, 2005, should be considered and not rejected as having been untimely filed. The Order also stated that the Union's response had to be filed no later than December 29, 2005. The Union filed a response to the Order on January 5, 2006. In its untimely response, the Union requests an extension of time and a waiver of the expired time limit for filing its response to the Authority's Order on the grounds that the Agency's exceptions and the Authority's Order were sent to the address of the Union's office, and not to the home address of the Union's representative. The Union also notes that the Agency's exceptions and the Authority's Order were not addressed to the Union's office suite number used by the Union's representative. The Union contends that both its opposition to the Agency's exceptions and its response to the Authority's Order were timely filed under the circumstances.

      The Union's response fails to establish that the Agency's exceptions or the Authority's Order should have been sent to the Union representative's home address. Although the Union states in its response that it has attached documentation to show why service in this case should have been at the Union representative's home address, such documentation was not filed with the Authority. Moreover, the Union does not argue that its opposition to the Agency's exceptions or its response to the Authority's Order would have been timely filed if the exceptions or Order had been addressed to the office suite number used by the Union's representative.

      Consequently, the Union's response to the Order provides no basis for finding either its opposition to the Agency's exceptions or its response to the Authority's Order to have been timely filed. See, e.g., AFGE, Local 1770, 43 FLRA 303 (1991) (in response to the agency's argument that it did not receive the Authority's deficiency order because it was sent to wrong address, the Authority noted that the order was mailed to the address provided by the agency and that the agency was responsible for providing the correct mailing address). For the same reasons, the Union has not demonstrated that "extraordinary circumstances" warrant an extension of time or a waiver of the expired time periods under § 2429.23(b) of the Authority's Regulations. [n5]  See, e.g., AFGE, Local 1917, 52 FLRA 658, 661 n.3 (1996) (untimely filing because of asserted internal mail problems did not constitute extraordinary circumstances). Accordingly, in resolving the Agency's exceptions, we have not considered the Union's opposition. See, e.g., Soc. Sec. Admin., 61 FLRA 315, 315 n.2 (2005). [ v63 p18 ] 

V.     Analysis and Conclusions

A.     The award does not fail to draw its essence from the parties' collective bargaining agreement.

      In order for an award to be found deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (OSHA). This standard makes clear that an arbitrator's award will not be found to fail to draw its essence from the agreement merely because a party believes that the arbitrator misinterpreted the agreement. The Authority defers to an arbitrator's interpretation of the agreement because it is the arbitrator's construction of the agreement for which the parties have bargained. Id. at 575-76.

      Contrary to the Agency's assertions, in determining that the grievants were entitled to PCS moving expenses, the Arbitrator did not disregard Article 58, Section 18. The Arbitrator found that the relocation of the grievants' residences from Boston to Merrimack was involuntary because of the Agency's decision to relocate the grievants' duty stations from Boston to Merrimack. Award at 37. After reviewing Article 58, Section 18, the Arbitrator interpreted the limitation of the payment of PCS moving expenses to one move within a twelve-month period as not applying to involuntary relocations. Id. at 39-40. Instead, the Arbitrator interpreted Article 58, Section 18 to apply to a voluntary relocation of residence as a result of an employee's decision to apply for and accept a position at a different duty station. Id.

      Although Article 58, Section 18 limits the payment of PCS moving expenses to one move within a twelve-month period, it is silent as to situations where there is an involuntary relocation of an employee's residence as a result of the Agency's decision to relocate the employee's duty station. Moreover, the Agency's legal counsel specifically advised management that the limitation of Article 58, Section 18 did not apply to the grievants' situation, id. at 38, and, as set forth below, we deny the Agency's exception concerning reliance on that management advice. Consequently, the Agency fails to establish that the Arbitrator's interpretation of Article 58, Section 18 as inapplicable to the grievants' circumstances of involuntary relocation of their residences is irrational, implausible, unfounded, or in manifest disregard of the collective bargaining agreement. See OSHA, 34 FLRA at 576. The Agency's arguments that the Arbitrator erred in relying on Agency travel regulations and the parties' MOU rely on the same asserted interpretation of Article 58, Section 18. Thus, for the same reasons, these arguments also fail to establish that the award is deficient. Consequently, the Agency provides no basis for finding that the award fails to draw its essence from the parties' collective bargaining agreement. Accordingly, we deny the exception.

B.     The award is not based on nonfacts.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. E.g., NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed before the arbitrator. Id.

      The Agency asserts that the Arbitrator disregarded the parties' stipulation that "the [grievants] responded to a bid and, therefore, voluntarily sought the position at the Boston [radar facility]." Exceptions at 4. The Agency also notes that the parties "stipulated that the [grievants] were put on notice that the facility relocation to Merrimack, NH was scheduled (and completed) in February 2004." Id. Therefore, the Agency argues that the grievants "knew or should have known that [bidding for the positions in Boston] constituted the eventual assignment to Merrimack[.]" Id.

      The Agency's exception challenges the Arbitrator's finding that the change of the grievants' duty station from Boston to Merrimack constituted a permanent change of duty station that was required by the Agency. Award at 37. This finding does not disregard the stipulations that the change of duty stations to Boston was voluntary and relocation to Merrimack was scheduled. Moreover, the effect of the change of duty station from Boston to Merrimack was specifically disputed before the Arbitrator by the parties. Award at 30-31, 33-34, 37. Consequently, the Arbitrator's finding that the change of the grievants' duty station from Boston to Merrimack constituted a permanent change of duty station that was involuntary because it was required by the Agency cannot be challenged as a nonfact. NFFE, Local 1984, 56 FLRA at 41. Therefore, the Agency provides no basis for finding that the award is based on nonfacts. Accordingly, we deny the exception. [ v63 p19 ] 

C.     The award is not contrary to law.

      When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. E.g., NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. E.g., NFFE, Local 1437, 53 FLRA 1703, 1710 (1998).

      Relying on the Supreme Court's decision in OPM, the Agency contends that the incorrect information provided by management to the grievants did not create an entitlement to PCS moving expenses associated with the relocation of the grievants' duty station from Boston to Merrimack. The Agency's reliance on the Supreme Court's decision in OPM is misplaced.

      In OPM, the Supreme Court addressed whether "a claim for payment of money from the Public Treasury [was] contrary to a statutory appropriation." OPM, 496 U.S. at 424. The Court explained that "payments of money from the Federal Treasury are limited to those authorized by statute[.]" Id. at 416. The Court held that the federal government cannot be compelled to make unauthorized expenditures of funds. Id. at 426. In this case, the Agency does not argue, much less establish, that payment of the disputed PCS moving expenses violates any federal appropriation laws. Consequently, the Supreme Court's decision in OPM provides no basis for finding the award deficient. See United States Dep't of Energy, Rocky Flat Field Office, Golden, Colo., 59 FLRA 159, 163 (2003) (the Supreme Court's decision in OPM does not apply unless it is shown that the disputed expenditure violates a federal appropriation law). Accordingly, we deny the exception.

D.     The Arbitrator did not exceed her authority.

      The Agency contends that the Arbitrator exceeded her authority by granting additional PCS moving expenses within a twelve-month period because Article 58, Section 18 limits the payment of PCS moving expenses to once during a twelve-month period. When the Authority denies an exception, which contends that the award fails to draw its essence from the parties' collective bargaining agreement, and the appealing party essentially reiterates its essence arguments in contending that the arbitrator exceeded his or her authority, the Authority denies the exceeded-authority exception consistent with the denial of the essence exception. E.g., NTEU, 62 FLRA 45, 48 (2007). In this case, the Agency's exceeded-authority argument recasts its essence arguments as an exceeded-authority exception. Consistent with our denial of the essence exception, we deny this exception.

VI.      Decision

      The Agency's exceptions are denied.



Footnote # 1 for 63 FLRA No. 7 - Authority's Decision

   As set forth infra Part IV, the Union's opposition was not timely filed and has not been considered.


Footnote # 2 for 63 FLRA No. 7 - Authority's Decision

   Article 58, Section 18 provides:

Transferred employees who receive a paid PCS relocation move shall not be entitled to another paid PCS move until twelve (12) months after becoming facility certified.

Award at 8.


Footnote # 3 for 63 FLRA No. 7 - Authority's Decision

   According to the Arbitrator, Article 58, Section 3 pertinently provides that employees are "authorized reimbursement of moving expenses for involuntary moves resulting from facility relocation[.]" Award at 4.


Footnote # 4 for 63 FLRA No. 7 - Authority's Decision

   Article 102, Section 1 provides, as follows:

Any provision of this Agreement shall be determined a valid exception to, and shall supersede any existing or future Employer rules, regulations, directives, orders, policies and/or practices which conflict with the Agreement.

Id. at 7.


Footnote # 5 for 63 FLRA No. 7 - Authority's