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50:0079(15)AR - - AFGE, Council 73, National Council of Field Labor Locals and DOL, Employment Standards Adm., Region I - Wage Hour Division, Hartford, CT - - 1995 FLRAdec AR - - v50 p79

[ v50 p79 ]
The decision of the Authority follows:

50 FLRA No. 15

















January 3, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Louis P. Pittocco 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 contesting the Agency's discontinuance of the grievant's locality pay adjustment. The Arbitrator concluded that the grievant was not entitled to the locality pay authorized for New Haven, Connecticut because her duty station was Hartford, Connecticut.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

Prior to the grievance, the grievant's duty station was designated on various personnel forms as New Haven, Connecticut, even though, at all times, the grievant was assigned to, and worked at, the Agency's Hartford, Connecticut office. As a result of that designation, the grievant received the locality pay adjustment authorized under section 101 of the Federal Employees Pay Comparability Act of 1990 (FEPCA), incorporated in section 529 of Pub. L. No. 101-509, 104 Stat. 1427, 1431-35 (1990), codified at 5 U.S.C. § 5304, for Federal employees assigned to New Haven duty stations. When Agency headquarters personnel became aware of the designation, they requested that the grievant's records be corrected. The Agency's local personnel office then initiated an action to reassign the grievant from New Haven to Hartford and, as a result, locality pay was terminated. A grievance was filed, which was submitted to arbitration on the following issue, as set forth by the Arbitrator in pertinent part:

Did Management violate the [parties'] Collective Bargaining Agreement or governing regulations by denying [the grievant] a locality pay adjustment . . . ?

If so, what shall be the remedy?

Award at 1.(1)

The Arbitrator determined that the Agency did not violate the parties' agreement or applicable regulations when it terminated the grievant's locality pay adjustment. The Arbitrator noted that Hartford was "where her desk, phone and supervisor were located[]" and that the grievant never worked at the New Haven office. Id. at 8. The Arbitrator stated that, after a New Haven office opened, the grievant "could have requested to be physically located in New Haven and her request would most likely have been granted. Instead she chose to stay in Hartford . . . ." Id.

III. Exceptions

A. Union's Contentions

The Union asserts that the award violates FEPCA and Federal Personnel Manual (FPM) Letter 531-62, which implements FEPCA, because the Arbitrator should have found, on the basis of various personnel forms, that the grievant's duty station was New Haven. The Union also contends that the award violates FPM Supplement 296-33, which addresses duty stations, because the Arbitrator improperly relied on the location of the grievant's desk, phone, and supervisor in determining her duty station. Finally, the Union maintains that the award violates Articles 2 and 33 of the parties' agreement(2) and that the Arbitrator demonstrated "bias when he invented material facts . . . ." Exceptions at 2.

B. Agency's Opposition

The Agency contends that the Union's exceptions should be dismissed as untimely. The Agency also asserts that the Union's exceptions do not establish that the award is deficient.

IV. Analysis and Conclusions

Contrary to the Agency's contention, the Union's exceptions were timely filed. A 5-day extension is added to the 30-day time limit for filing exceptions if the award is served by mail. 5 C.F.R. §§ 2429.22, 2429.27(d). However, the time limit and the extension are computed separately and, if either time period would expire on a Saturday, Sunday, or Federal legal holiday, then the period is deemed not to expire until the end of the next workday. 5 C.F.R. § 2429.21(a); U.S. Department of Housing and Urban Development, Washington, D.C. and American Federation of Government Employees, Local 476, 46 FLRA 878, 880 (1992). Here, both the 30-day time limit and the 5-day mail period would have expired on Saturdays and, with respect to the latter period, the next workday was Tuesday, May 31. As such, the exceptions, filed on May 27, are timely.

The Union has not demonstrated that the award violates law or regulation. First, FPM Letter 531-62 was abolished, effective December 31, 1993. See FPM Sunset Document, Summary Table at 8. In U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, 49 FLRA 802, 811 (1994), the Authority held that, consistent with a well-established principle of administrative law, agencies must apply the law in effect at the time a decision is made, even when that law has changed during the course of a proceeding, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary. In our view, the failure to apply the abolished FPM provision in this case results in no manifest injustice and there is no statutory direction or legislative history to apply the abolished provision.

Second, the factors relied upon by the Arbitrator to determine the grievant's duty station are set forth in FPM Supplement 296-33, subchapter 23-1.a., as relevant to such determinations. Based on those factors, the Arbitrator found that the grievant's duty station was Hartford at all relevant times and that the grievant's personnel forms were appropriately corrected to show Hartford as her official duty station.

Third, the Union's contention that the Arbitrator improperly failed to find that various personnel forms established the grievant's duty station as New Haven also does not establish that the award is deficient. See, for example, United States Customs Service, Office of Regulations and Rulings and National Treasury Employees Union, 49 FLRA 1610, 1618-19 (1994).

In light of the foregoing, the award is not inconsistent with FEPCA or applicable regulations.

We construe the Union's claim that the Arbitrator "ignored and failed to apply" Articles 2 and 33 of the parties' agreement as a contention that the award fails to draw its essence from the agreement. Exceptions at 2. To establish that an award is deficient on this ground, a party must demonstrate 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 purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, United States Army Missile Materiel Readiness Command (USAMIRCOM) and American Federation of Government Employees, Local 1858, AFL-CIO, 2 FLRA 433, 437-38 (1980). The Union has not demonstrated that the award is deficient under any of these tests. As such, the exception provides no basis for finding the award deficient. See, for example, id. at 438.

Finally, to demonstrate that an award is deficient because of bias on the part of an arbitrator, a party must show, for example, that the award was procured by improper means, that there was partiality or corruption on the arbitrator's part, or that the arbitrator engaged in misconduct that prejudiced a party's rights. See, for example, U.S. Department of the Army, Headquarters III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government Employees, Local 1920, 48 FLRA 724, 729 (1993). The Union offers no substantiation for its conclusory allegations regarding bias. Accordingly, we deny this exception. See, for example, American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1371-72 (1993).

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. After the grievance in this case was filed, but before the arbitration hearing, all previous personnel documents designating the grievant's duty station as New Haven, including a reassignment action, were cancelled and the previous designations were "correct[ed]" to show her duty station as Hartford. Exceptions, attachments B and C.

2. Article 2, section 5(A) provides, in pertinent part:

A. Management agrees to transmit to the [Union] proposed changes relating to . . . matters affecting working conditions of bargaining unit employees . . . as far in advance as possible.

Award at 2.

Article 33, section 5 provides, as pertinent:

The [Union] . . . will be notified of all proposed networking transfers of bargaining unit employees at least two weeks in advance . . . .

Id. at 5.