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53:0034(8)AR - - Interior, Bureau of Mines, Pittsburgh Research Center and AFGE Local 1916 - - 1997 FLRAdec AR - - v53 p34

[ v53 p34 ]
The decision of the Authority follows:

53 FLRA No. 8










LOCAL 1916





June 23, 1997


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

I. Statement of the Case

This matter is before the Authority on exceptions to both an original and a final award of Arbitrator Robert A. Creo 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 oppositions to the Agency's exceptions.

In his original award, the Arbitrator sustained a grievance and ordered the Agency to allow the grievant to complete college courses by a particular date, on a divided work schedule, and at Government expense. The Agency filed exceptions to that award. In U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 50 FLRA 116 (1995), the Authority remanded the case to the parties who, absent settlement, were directed to resubmit the case to the Arbitrator to determine whether the courses for which the grievant sought payment were consistent with the requirements of 5 U.S.C. §§ 4101-4119 (the Training Act). In his final award, the Arbitrator made various findings and again sustained the grievance.

For the reasons explained below, we conclude that two exceptions provide no basis for finding the award deficient. Accordingly, we deny those exceptions. We have severed a third exception from this case pursuant to section 7122(a) of the Statute and section 2425.4 of the Authority's Regulations. We issue a separate order today directing the Agency to demonstrate why that exception should not be dismissed as moot.

II. Background and Authority's Decision in 50 FLRA 116

The grievance challenged the Agency's refusal to approve and pay for several college courses the grievant sought to take during the spring 1993 semester. The grievant requested that he be permitted to work a divided schedule, which consisted of various hours to be worked during Monday through Friday and "[a]s in the past . . . make up the necessary hours (8) on Saturday by working credit time/using annual leave." Exceptions to Final Award, Exhibit 4 at 2. The Agency denied the training request on the grounds that the courses and work schedule would not be of benefit to the employee's work group, that the grievant did not need a college degree for his position, that the Agency did not have a need for additional personnel with such a degree, and that an increase in training costs necessitated closer scrutiny of all training requests.

The Arbitrator concluded that the Agency's conduct violated an established past practice and constituted discrimination against the grievant for having filed a prior claim for reimbursement. The Arbitrator found that the Agency had routinely granted training requests and had encouraged the grievant to obtain a college degree. The Arbitrator determined that the Agency's "invalid change" in its training policy could not supersede the commitment it had made to the grievant and that the grievant did not "need, at this late date, to prove how his classes directly benefit the [grievant's work] Group, the [Agency] or the U.S. Government." Original Award at 17. The Arbitrator also found that even though the grievant was needed to work on two projects, the grievant's supervisor testified that "he would approve Grievant's classes if it were not for the change in priorities that Spring." Id. The Arbitrator stated that he would "hold the [Agency] to this . . . ." Id. To remedy the violation, the Arbitrator ordered the Agency to permit the grievant to complete his degree "by the end of the calendar year 1995 . . . [and] allow the Grievant to work a divided schedule consistent with that worked in previous years . . . ." Id. The Arbitrator also ordered the Agency to provide "appropriate reimbursements." Id. at 18.

The Agency excepted to the award based on: (1) a claimed inconsistency with the Training Act; and (2) a claimed interference with section 7106(a)(2)(B) of the Statute.

The Authority remanded the case because it was unable to determine whether the award was consistent with the Training Act and, specifically, whether the courses were, in fact, directly related to the grievant's duties. The Authority stated the following with regard to the requirements of the Training Act:

Under 5 U.S.C. § 4101(4), training is defined as various programs and courses of instruction that "are or will be directly related to the performance by the employee of official duties for the Government, in order to increase the knowledge, proficiency, ability, skill, and qualifications of the employee in the performance of official duties[.]" In order for an agency to pay for or reimburse training costs, there must be a determination that the training is for an appropriate purpose as described above. Payment or reimbursement of training costs is not authorized for "the purpose of providing an opportunity to an employee to obtain an academic degree in order to qualify for appointment to a particular position for which the academic degree is a basic requirement" or for "the sole purpose of providing an opportunity to an employee to obtain one or more academic degrees." 5 U.S.C. § 4107(c).

50 FLRA at 119-20. In light of the remand, the Authority did not address the award's consistency with section 7106(a)(2)(B).

III. Arbitrator's Final Award

The Arbitrator issued a one page "Final Order" that contained the following "Findings:"

The Arbitrator finds that the training is appropriate since the Government can be expected to gain more benefit from the training than it invested in the cost and that the courses are or will be directly related to the performance by the employee of official duties for the Government.

Final Award at 1.

IV. Exceptions

A. Agency's Contentions

As relevant here, the Agency argues that the final and original awards are deficient as: (1) contrary to the Training Act; and (2) based on nonfacts.

1. Contrary to Law

According to the Agency, section 4107(c) of the Training Act prohibits the approval of, and payment for, training whose sole purpose is to obtain an academic degree. The Agency maintains that the evidence establishes that the grievant sought to enroll in various courses in order to complete his degree and that the courses were not directly related to the performance of the grievant's duties. The Agency adds that the Arbitrator's "cursory and unsupported statement in his Final Award does not satisfy the statutory requirements" under the Training Act. Exceptions to Final Award at 3. According to the Agency, the issue on remand was not simply whether the training would be appropriate or would benefit the Government but, rather, was whether the courses for which payment was sought "would directly 'increase the knowledge, proficiency, ability, skill, and qualifications of the employee in the performance of official duties[.]'" Id. at 6 (quoting 5 U.S.C. § 4101(4)). The Agency contends that the Arbitrator failed to make this determination.

2. Nonfacts

The Agency asserts that both awards "are totally devoid of supporting facts" and that the Arbitrator based his determination on nonfacts. Id. at 7. The Agency explains that there are no facts or findings "demonstrating that the courses for which the Grievant requested reimbursement are directly related to the official duties of his position, and that they will increase his knowledge, proficiency, skill and qualification in the performance of his official duties as required by 5 U.S.C. § 4101(4)." Id. at 10.

B. Union's Opposition

The Union maintains that the only question posed to the Arbitrator in the Authority's remand decision was whether the courses for which the grievant sought payment would directly relate to the grievant's official duties so as to be consistent with the Training Act. According to the Union, the Arbitrator made this determination. The Union claims that the Agency's exceptions primarily are concerned with the brevity of the Arbitrator's final award. In this connection, the Union asserts that the Authority consistently has held that arbitrators need not make or discuss specific findings or provide extensive rationale unless required by "contract, the submission of the parties to the arbitrator, or by law." Opposition at 2. In support, the Union cites U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C. and American Federation of Government Employees, Local 3407, 35 FLRA 929 (1990) and Wissman v. Social Security Administration, 848 F.2d 176 (Fed. Cir. 1988) (Wissman).

In addition, the Union also claims that the exceptions constitute disagreement with the Arbitrator's findings of fact; his evaluation of the evidence and testimony, including the credibility of witnesses and the weight to be given their testimony; and are an attempt to relitigate the case before the Authority.

V. Analysis and Conclusions

A. The Awards Are Consistent With the Training Act (1)

Our review of the Agency's exceptions to the awards' consistency with the Training Act is de novo. 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)).

The Agency essentially argues that the award is deficient because the Training Act: prohibits the approval of and payment for courses that are taken solely for the purpose of obtaining an academic degree; and requires that courses are or will be directly related to an employee's performance of official duties in order to increase, among other things, the employee's knowledge, skills, and abilities. We find that the record does not support the conclusion that the Arbitrator failed to apply the appropriate legal standard or that his awards were contrary to law.

First, while 5 U.S.C. § 4107(c) prohibits payment for, or reimbursement of, courses that are intended solely in order to obtain an academic degree, nothing in the awards or the record in this case indicates that the grievant sought reimbursement solely for that purpose. An examination of the training request shows that the grievant, who occupied the position of electronics technician, sought payment for electronics and engineering courses only. The grievant specifically stated that he would pay for elective courses. Had the grievant sought payment solely for the purpose of obtaining an academic degree, it is logical to assume that he would have sought payment for all the courses he intended to take. Moreover, Federal Personnel Management Chapter 410, subchapter S-3(d)(1), which was in effect at the time of the events surrounding this grievance, provided that reimbursement for training expenses was not prohibited even though attainment of an academic degree might be "an incidental byproduct of the training." Thus, the fact that the grievant may have earned an academic degree as a result of courses taken does not necessitate a finding that the courses were intended solely to obtain a degree.

Second, nothing in the awards is inconsistent with, or fails to account for, the requirements that the courses, at the time they were requested or at some future date, had to directly relate to the grievant's performance of official duties and increase his knowledge, skills, and abilities in the performance of those duties. The Arbitrator expressly found that the courses for which the grievant sought payment "are or will be directly related to the performance by the employee of official duties for the Government." Final Award at 1. The Agency's argument is focused on the relationship between the courses and the grievant's duties at the time the grievant sought to take the courses. However, the Training Act specifically provides that courses can be directly related to the performance of duties in the future, a finding that the Arbitrator expressly made and the Agency does not dispute. Based on this finding, it necessarily follows that the courses would increase the grievant's "knowledge, proficiency, ability, skill, and qualifications" in the performance of his duties. 5 U.S.C. § 4101(4). To the extent the Agency's arguments are premised on its disagreement with the Arbitrator's factual findings, we defer to those findings. See Federal Aviation Administration, SEATAC Airport, Seattle, Washington, 52 FLRA 701, 709 (1996).

We recognize that the Arbitrator did not provide extensive rationale in reaching his ultimate conclusions with regard to the requirements of the Training Act. However, this does not justify finding that the awards are contrary to law. The Authority previously has determined that arbitrators are not obligated to provide a rationale for their findings unless required to do so by contract, submission of the parties, or law. See U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 41 FLRA 56 (1991) (arbitrator not obligated to discuss reasons in support of legal conclusion). See also Wissman, 848 F.2d at 178 ("[i]f there is no contractual or statutory obligation, an arbitrator is not required to set forth findings of fact, much less the specific findings"). In this case, there is no argument and no evidence that the parties' collective bargaining agreement or their submission to the Arbitrator required specific findings on the issue before him. There also is no argument, and it is not otherwise apparent, that there are statutory or regulatory requirements obligating the Arbitrator to set forth specific findings or rationale in support of his decision.

In sum, we conclude that the Agency's exceptions provide no basis for finding the awards deficient as contrary to the Training Act.

B. The Awards Are Not Based on Nonfacts

To establish that an award is based on a nonfact, the appealing party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. 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). However, 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. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). The Agency makes no argument that any fact on which the Arbitrator relied is clearly erroneous, but for which a different result would have been reached. To the contrary, it is the absence of facts that form the basis of the Agency's exception.

We find that the Agency has failed to establish that the awards are deficient on this ground.

VI. Order

The exceptions addressed herein are denied.

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

1. Amendments to the Training Act in 1994 included changes to sections 4101(4) and 4107(c). We apply the pre-amended version here, as we did in 50 FLRA 116, because: it was in existence at the time of the events giving rise to the grievance; there is no indication in the legislative history of the amendments that they were intended to be applied retroactively; and, as the amendments eliminated various restrictions on training, including the requirement that training courses are or will be directly related to an employee's official duties, the Agency's rights in reliance on that requirement would be impaired were we to apply the amendments. See U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA 216, 224-25 (1995) (discussing Landgraf v. USI Film Products, 511 U.S. 244, 273-80, 114 S. Ct. 1483, 1501-05 (1994)). See also U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 368 n.6 (1996).