25:0902(74)AR - Bureau of Indian Affairs and NFFE Local 243 -- 1987 FLRAdec AR
[ v25 p902 ]
25:0902(74)AR
The decision of the Authority follows:
25 FLRA No. 74
BUREAU OF INDIAN AFFAIRS
Agency
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 243
Union
Case No. 0-AR-1195
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
arbitrator Eric B. Lindauer filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance in this case concerns the Agency's failure to grant
similar relief to 18 employees that had previously been granted to 9
employees who successfully appealed a rent increase. Both groups of
employees, the 18 non-appellant grievants and the 9 appellants, resided
in Government quarters at Warm Springs, Oregon in May 1982. At that
time, they were notified of an impending rent increase. The 9 employees
filed formal appeals of the rent increase with the Agency's Office of
Hearings and Appeals (OHA). Ultimately, these 9 appellants prevailed
and the OHA ordered rescission of the rent increase, ordered that
certain rental amounts previously withheld from the appellants' pay be
returned and ordered that no further increase be imposed in the absence
of a new rental rate survey.
In the meantime, the 18 non-appellants had indicated their desire to
have the rent increase be reappraised by responding to an Agency
questionnaire to that effect. The Union claimed that the employees
believed that they were filing appeals by responding to the
questionnaire, although no formal appeals were actually filed. After
the 18 non-appellants learned of the OHA's decision concerning the 9
appellants, the group of 18 submitted a request to the Agency's Area
Director that the same decision rendered with respect to the 9 employees
be applied to them as well. This request was denied whereupon the
grievance was filed.
The Arbitrator framed the primary issue in dispute, as agreed to by
the parties, as follows:
Did the Emploter/Agency act in an arbitrary manner when it
failed to grant similar relief to the eighteen (18) non-appellant
tenants as the OHA granted to the nine (9) appellant tenants who
did appeal? If so, what is the appropriate remedy?
The Arbitrator concluded based on the evidence and arguments before
him that the Agency had acted in an arbitrary manner by failing to grant
similar relief to the non-appellants as had earlier been granted to the
9 appellants by the OHA.
In reaching that conclusion, the Arbitrator made several rulings.
First, he found that the grievance was timely filed under the provisions
of the parties' collective bargaining agreement. He then determined
that the issue raised was within the scope of the negotiated grievance
procedure. As to this latter determination, the Arbitrator found that
he was empowered by the agreement to resolve questions of arbitrability.
He further found that Government housing was a matter relating to
employment and therefore within the definition of grievance in the
parties' agreement, that is, "any complaint by any employee concerning
any matter relating to his/her employment . . . or any claimed
violation, misinterpretation, or misapplication of any law, rule, or
regulation affecting conditions of employment." He also found that the
employees' complaint of not being treated equally by the Agency
concerned a claimed violation, misinterpretation, or misapplication of 5
U.S.C. Section 2301(b)(2). /*/ After reaching the conclusion that the
Agency had acted in an arbitrary manner by failing to grant similar
relief to the grievants, the Arbitrator ordered that all monies
collected pursuant to the rental increase ordered on May 6, 1982 be
refunded to the grievants, subject to any offset that had already been
provided.
III. EXCEPTIONS
The Agency argues that the award is deficient as contrary to law on
three grounds: (1) the Arbitrator erred in determining that the issue
submitted by the Union is within the scope of the collective bargaining
agreement; (2) even if the issue is covered by the negotiated grievance
procedure, the Arbitrator erred in failing to apply the appropriate
legal standard for holding the Government liable for a refund of rental
expenses; and (3) the Arbitrator's award is overly broad in that it
concerns non-bargaining unit employees and other employees who should
not be eligible for a refund of rental charges.
More particularly, as to the first ground, the Agency argues that the
grievance concerns rental rates which is not covered by the negotiated
grievance procedure but, rather, is a matter specifically provided for
by Federal statute and implementing Government-wide regulations. The
Agency also argues that the Arbitrator erroneously applied 5 U.S.C.
Section 2301(b)(2) to the matter. As to the second ground, the Agency
asserts that the Arbitrator erroneously "held the Government liable to
tenants for rent refunds, on general equitable principles, based on
misunderstandings created by certain (Agency) officials which he stated
were relied upon by the tenants." The Agency claims that "it is a well
established principle that the Government cannot be held liable for the
mistakes, misinformation or misrepresentations created by its employees
on the principle of 'equitable estoppel' in accordance with the same
standards applicable to a private litigant . . . " and argues that the
Arbitrator failed to apply the appropriate standards in this case. As
to the third ground, the Agency argues that a number of the employees
are supervisors and were therefore not covered by the negotiated
grievance procedure. The Agency also asserts that certain other
employees had not requested a reappraisal of the rental increase and
therefore could not be considered to have appealed the rental increase
for which they would now be eligible for a refund.
IV. ANALYSIS AND CONCLUSIONS
We find that the Agency's first exception alleging that the
Arbitrator erred in finding that the grievance was covered by the
negotiated grievance procedure of the parties' collective bargaining
agreement fails to establish that the award is deficient.
Section 7103(a)(9) of the Statute defines "grievance" as any
complaint "by any employee concerning any matter relating to the
employment of the employee . . . or a claim of breach of a collective
bargaining agreement or any claimed violation, misinterpretation, or
misapplication of any law, rule, or regulation affecting conditions of
employment." Moreover, unless specifically excluded, grievances are
covered by negotiated grievance procedures. In this case, as indicated
above, the Arbitrator found that the employees' grievance concerned a
claimed violation, misinterpretation or misapplication of law. Such a
claim is a "grievance" within the meaning of section 7103(a)(9) and in
the absence of any specific exclusion properly may be determined by an
arbitrator to be grievable and arbitrable under negotiated grievance
procedures. See Local R-1-185, National Association of Government
Employees and The Adjutant General of the State of Connecticut, 25 FLRA
No. 36 (1987), slip op. at 3. The Agency has not established that the
employees' grievance was specifically excluded from coverage of the
parties' negotiated grievance procedure. We therefore find that the
Agency has failed to establish that the Arbitrator's determination that
the grievance was arbitrable is deficient under the Statute.
Additionally, we find that the Agency's arguments in support of this
exception constitute nothing more than disagreement with the
Arbitrator's interpretation and application of the parties' agreement.
We have consistently held that such disagreement provides no basis for
finding an award deficient. See U.S. Army Corps of Engineers, Kansas
City District and National Federation of Federal Employees, Local 29, 22
FLRA No. 15 (1986). Moreover, the issue in dispute, as agreed to by the
parties, concerned asserted arbitrary action on the part of the Agency.
The Arbitrator found that the Agency had acted arbitrarily and ordered a
remedy for such conduct. The Agency has not demonstrated how the cited
laws and regulations would preclude the Arbitrator from making such a
determination or from remedying such conduct. See Northeastern Program
Service Center, Office of Program Service Centers, Social Security
Administration and American Federation of Government Employees, Local
1760, 7 FLRA 747 (1982).
We also find that the Agency's second exception that the Arbitrator
failed to apply the appropriate standard in determining the Government's
liability, does not present a basis for finding the award deficient.
Unless a specific standard of proof or review is required, which has not
been demonstrated by the Agency here, an arbitrator may establish
whatever standard the arbitrator considers appropriate and the award
will not be found deficient on this basis. See United States Customs
Service and National Treasury Employees Union, 22 FLRA No. 68 (1986),
slip op. at 3, and cases cited therein.
We find that the Agency's argument in support of its third exception
that the award improperly applies to employees outside the bargaining
unit establishes that the award is deficient in part. We have
determined that an arbitrator exceeds his or her authority by failing to
confine a remedy to bargaining unit employees. See U.S. Department of
Housing and Urban Development and American Federation of Government
Employees, Local No. 3412, 24 FLRA No. 47 (1986). Here, the remedy
properly should apply only to those grievants who were in the bargaining
unit at the time of the events giving rise to the grievance. Therefore,
the Arbitrator's award shall be modified to apply to those grievants who
were in the bargaining unit at the time of the May 1982 rental increase.
However, we find that the Agency's further argument in support of this
exception is without merit. The award is not deficient to the extent
that it applies to bargaining unit employees who may not have requested
reappraisals or appealed the rental increase. The matter in dispute
before the Arbitrator concerned arbitrary action on the part of the
Agency with respect to the grievants. The remedy appropriately covers
those bargaining unit employees who were subject to such arbitrary
action.
V. DECISION
Accordingly, the award is modified to provide as follows:
(A)ll monies collected pursuant to the rental increase ordered
May 6, 1982 be refunded to the grievants, who were in the
bargaining unit at the time of the events giving rise to the
grievance, subject to offset already provided.
Issued, Washington, D.C., February 26, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) 5 U.S.C. Section 2301(b)(2) provides:
Section 2301. Merit system principles
. . . . . . .
(b) Federal personnel management should be implemented
consistent with the following merit system principles:
. . . . . . .
(2) All employees and applicants for employment should receive
fair and equitable treatment in all aspects of personnel
management without regard to political affiliation, race, color,
religion, national origin, sex, marital status, age, or
handicapping condition(.)