54:0880(87)AR - - AFGE Council 163 and Local 2551 and DOD, Defense Contract Audit Agency - - 1998 FLRAdec AR - - v54 p880
[ v54 p880 ]
The decision of the Authority follows:
54 FLRA No. 87
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
August 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Peter Florey 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 over the Agency's refusal to pay permanent change of station (PCS) moving expenses associated with the relocation of the grievant's office from Sudbury to Bedford, a distance of 11 miles.(1)
For the reasons that follow, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant is an auditor who is assigned to audit companies under contract with the Agency. He began to work for the Agency in December 1988. At that time, he lived in Dudley, and commuted approximately 36 miles to his assignment in Marlborough. In 1992, the grievant was transferred from Marlborough to Sudbury, about 6 miles away, and approximately 6 miles further from his home in Dudley. In 1995, the grievant was reassigned from Sudbury to Bedford, about 11 miles away, and an additional 11 miles further from Dudley.
In January 1996, the grievant requested from the Agency PCS entitlement for moving expenses due to the change in duty location from Sudbury to Bedford.(2) On February 2, 1996, the Agency denied the PCS for three reasons: (1) the Sudbury and Bedford offices are in the same commuting and competitive areas; (2) the AAA states that the distance between Sudbury and Bedford is 11 miles; and (3) the supplemental collective bargaining agreement identifies a 22-mile radius of the permanent duty station as the local commuting area. In the disapproval letter, the Agency relied on Comp. Gen. Decision B-256350 and noted that the Comptroller General has consistently held that in short-distance relocations of duty stations, agencies have broad discretion in determining whether an employee's move is incident to the change in duty station. See Union Post-Hearing Brief, Attachment 3. Whether an employee's home move is incident to the change in duty station is one of the factors used to determine whether PCS expenses should be reimbursed under applicable FTR and JTR regulations.(3)
At the time he requested PCS entitlement, the grievant had not selected a new home. Later in 1996, the grievant moved his family from Dudley to Shrewsbury, from which he had a 33 mile commute to Bedford. The grievant had claimed that his previous commute from Dudley to Bedford was 62 miles and took 90 minutes each way. See Award at 5.
The grievant grieved the denial of PCS entitlement. The grievance was not resolved and was submitted to arbitration. The parties did not agree on the issue to submit to the Arbitrator. The Arbitrator framed the issue as:
Whether . . . the Agency's determination to deny [the grievant's] request for PCS entitlements was clearly erroneous, arbitrary, or involved an abuse of discretion.
Id. at 5.
The Arbitrator found that the Agency did not abuse its discretion under the FTR and the JTR in denying PCS moving expenses to the grievant. First, the Arbitrator held that the grievant based his request for PCS expenses on his "subjective situation exclusively," that is, the Arbitrator stated that the grievant argued that the change of duty stations from Sudbury to Bedford made the grievant's commute from his home in Dudley too "strenuous." Id.
On the other hand, the Arbitrator noted that the Agency based its denial of PCS expenses on the facts that the Sudbury duty station is in the same commuting and competitive area as the Bedford duty station and that the distance between Sudbury and Bedford is 11 miles.
In finding that the Agency did not abuse its discretion under the FTR and the JTR, the Arbitrator concluded that "only the impact of the move of the duty station from Sudbury to Bedford, or at most from Marlborough to Bedford, is at issue." Id. at 7. This was so, the Arbitrator stated, because the grievant had not purchased a new home at the time he requested PCS expenses. Thus, the Arbitrator found that because employees who lived close to Marlborough or Sudbury were not entitled to PCS expenses when the duty station changed to Bedford, neither was the grievant just because he originally chose to accept a long commute when he first started to work for the Agency. The Arbitrator held further that even if the grievant's residence relocation to Shrewsbury was made at the time he requested PCS expenses, that fact would not affect the reasonableness of the Agency's denial of the request.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is contrary to JTR Section C4108 because the grievant's situation meets the first three objective requirements under Section C4108: (1) the move is in the interest of the Government; (2) the move is to a new permanent duty station which is at least 10 miles distant from the old duty station; and (3) the move is not primarily for the convenience or benefit of the employee or at his request. The Union maintains that the fourth requirement under Section 4108 is both subjective and objective: the relocation of the residence is incident to the transfer.
The Union asserts that the Arbitrator erred when he considered the distance between the former permanent duty station and the new duty station. The Union argues that the Arbitrator should have based his determination on the distance from the employee's home to the new duty station.
The Union also contends that the Arbitrator failed to conduct a fair hearing and deprived the Union of an adequate opportunity to represent its case. The Union disagrees with the way in which the Arbitrator framed the issue and argues that because the Arbitrator accepted the Agency's perception of the issue, the Union was required to demonstrate that the Agency's denial was erroneous, arbitrary or an abuse of discretion.
The Union further asserts that it was incumbent on the Arbitrator to provide the Union a fair hearing and to permit testimony and consider documents relevant and pivotal to the issue. Specifically, the Union asserts that the Arbitrator would not permit the introduction, consideration, testimony or cross-examination of witnesses relating to a July 7, 1995 memorandum, in which an Agency official noted that the relocation to Bedford might create PCS entitlements for some unspecified employees.
B. Agency's Opposition
The Agency contends that the Union's exceptions are procedurally deficient under section 2425.2(c) and (d) (4) of the Authority's Regulations because they exclude pertinent documents, that is, the parties' pre-hearing briefs.(5) According to the Agency, these briefs provided extensive submissions in response to the Arbitrator's direction. The Agency argues that because the Union did not provide these pertinent documents, its exceptions should be denied.
As to the Union's contention that the award is contrary to the FTR and the JTR, the Agency argues that the Comptroller General has stated that "[a]s a general rule, we will not overturn an agency's determination on this issue in the absence of a showing that it was clearly erroneous, arbitrary, or involved an abuse of discretion." Opposition at 5 (quoting from Comp. Gen. Decision B-256350). The Agency contends that the Union appears to be rearguing its case by indicating its disagreement with the Arbitrator's finding. The Agency also contends that the Union misstates the Arbitrator's rationale regarding the criterion "incident" to the change.
In response to the Union's unfair hearing claim, the Agency maintains that the Union failed to demonstrate that the memorandum the Union sought to introduce was pertinent or material to the Agency's denial of the grievant's PCS entitlement request. Further, the Agency notes that the memorandum was already part of the record, and was included as an attachment to the Union's pre-hearing brief. Therefore, the Agency contends that there was no need to admit the memorandum into evidence at the hearing.
IV. Analysis and Conclusions
A. The Union's Exceptions Are Not Procedurally Deficient under Section 2425.2(c) and (d)
The exceptions adequately state the grounds on which review of the award is requested and the arguments in support of the stated grounds. The Union accompanied its exceptions with a copy of the Arbitrator's award and both parties' post-hearing briefs, complete with multiple attachments. We do not view the failure by the Union to attach the parties' pre-hearing briefs to its exceptions to be a deficiency. However, even if it were to be viewed as a deficiency, the Authority has declined to dismiss filings on the basis of minor deficiencies where the deficiencies did not impede the opposing party's ability to respond. See American Federation of Government Employees, Local 2006 and Social Security Administration, Philadelphia, Pennsylvania, 52 FLRA 380, 384 n.5 (1996); U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 44 FLRA 1195, 1199 (1992).
In addition, we note that the Authority has found that a party's failure to provide the Authority with two attachments is not a basis for dismissing the exceptions. See Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, AFL-CIO, Local 1364, 35 FLRA 754 (1990). The Authority has also found that regardless of who filed the attachments, the Authority considered the record complete and ruled on the exceptions. Id. at 759.
In this case, the Union's exceptions were not deficient. The Union supplied the Authority with the requisite materials in its exceptions, consistent with section 2425.2(c) and (d). In addition, the Agency supplied the Authority with the pre-hearing briefs. Therefore, the record is complete and the Agency's contention to the contrary is without merit.
B. The Award Is Not Contrary to Law, Rule or Regulation
As this exception involves the award's consistency with law, we review the questions of law raised by the exception and the Arbitrator's award de novo. See 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)). 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, based upon the underlying factual findings. 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. It 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 FTR, 41 C.F.R. § 302-1.7(a), provides "guidelines" for agencies to follow in order to determine whether relocation expenses shall be payable as incident to a change of permanent duty station. Comp. Gen. Decision B-256350 at 1. The Comptroller General stated further that:
[w]e have consistently held that this regulation does not establish fixed rules to be applied in all cases where the old and new duty stations are relatively close to each other. Rather, the regulation gives the agency broad discretionary authority to determine whether an employee's move from one residence to another is in fact incident to a change of official station.
Id. at 2. Unless an agency makes a "positive determination" of eligibility based on the various factors referred to in the regulation and relocation expenses are incurred, no basis for payment of a claim exists. Id. The Comptroller General concluded that he will not overturn an agency's determination on this issue in the absence of a showing that it was "clearly erroneous, arbitrary, or involved an abuse of discretion." Id.
Section C4108 of the JTR, promulgated by the Department of Defense, provides further guidance within the Agency. The qualifications for payment of relocation expenses under Section C4108 include whether the transfer:
(1) is in the interest of the Government; (2) is to a new [permanent duty station] which is at least 10 miles distant from the old [permanent duty station]; (3) is not primarily for the convenience or benefit of the employee or at his request; and (4) [is the cause of the] relocation of the residence . . . .
JTR Section C4108. The JTR also provides, as does section 302-1.7(a) of the FTR, that the Agency should look at such things as commuting time and the distance between the employee's residence and his old and new duty stations.
Upon de novo review, we conclude for the following reasons that the Arbitrator correctly held that the Agency's denial of PCS moving expenses is not contrary to the FTR and the JTR provisions at issue in this case. Accordingly, the award is not deficient as contrary to law.
Section 302-1.7 of the FTR provides that PCS moving expenses can be paid "only when the agency determines" that the employee's move was incident to the transfer of permanent duty station. Beyond designating the employing agency as the entity to make this determination, however, this regulation goes on to identify certain factors that can be used by an agency in deciding PCS expense matters. This list of factors is suggestive, not exclusive. In our view, this language provides considerable discretion to an agency in making PCS payment determinations.(6) Thus, in concurrence with the Comptroller General's standard of review on this point, we will not set aside an arbitration award reviewing an agency's 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.
As indicated above, we find that the Arbitrator correctly ruled that the Agency's denial of PCS moving expenses was not clearly erroneous, arbitrary, or an abuse of discretion, and thus, the award is not inconsistent with law. In this regard, as the Arbitrator correctly held, the Agency properly exercised its discretion consistent with the appropriate guidelines for making determinations under the regulation about PCS moving expenses. As noted by the Arbitrator, the factors that the Agency used include the 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. The Agency made the calculations required under the FTR, based on the information supplied by the grievant. The Agency specifically found that the old and new duty stations were only 11 miles apart and were in the same commuting area.
Without a designated new home area, the Agency was unable to consider the location of the grievant's new home in assessing his request for PCS moving expenses. Therefore, the Agency substituted the old permanent duty station location for the new home area in determining whether the grievant was entitled to reimbursement for PCS expenses. We find that the Arbitrator correctly held that the Agency's substitution of the old permanent duty station for the new home area, in making this computation, was not clearly erroneous, arbitrary, or an abuse of discretion, in making its overall determination of whether the grievant was eligible for PCS entitlement. In this regard, because the grievant had voluntarily accepted a commute of 33 miles from Dudley to Marlboro, the Arbitrator correctly concluded that the Agency reasonably determined that the grievant stood in no different position from employees who lived and worked in Marlboro. Therefore, it was not an abuse of discretion to use Marlboro as the home area equivalent for measuring commuting distance. Thus, the Arbitrator found that had the Agency known of the grievant's choice of new home location, Shrewsbury, when it made the computation, the determination as to the grievant's eligibility for PCS entitlement would not have changed.
In sum, we find that nothing in the FTR and JTR regulations cited by the Union required the Agency to reimburse the grievant for PCS expenses in these circumstances. We find that the Arbitrator correctly held that the Agency reasonably concluded, based on applicable FTR and JTR regulations, that the grievant's relocation of his residence was not incident to the transfer in permanent duty station. We also find that the Agency made the computations required under the regulations to the best of its ability, based on the information supplied by the grievant. Accordingly, the award does not conflict with the FTR and JTR regulations and, therefore, is not deficient under section 7122(a) of the Statute.
C. The Arbitrator Did Not Fail to Conduct a Fair Hearing
An award will be found deficient when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). The Union contends that the Arbitrator failed to conduct a fair hearing when the Arbitrator refused to allow the Union to introduce evidence regarding a specific memorandum and to question witnesses about it. Specifically, the Arbitrator determined that the July 7, 1995 memorandum, and a discussion of that memorandum at the arbitration hearing, were not relevant to the issue in the case as he framed it.
To support this contention, however, the Union challenges the way the Arbitrator framed the issue as being unfair. Accordingly, the Union's real dispute is with the Arbitrator's framing of the issue in the case, since that is what prompted the Arbitrator to make the evidentiary rulings to which the Union objects. The parties had not agreed upon a stipulated issue to submit to the Arbitrator. Therefore, the Arbitrator framed the issue. As he framed the issue, the Arbitrator focused on whether, under the FTR and the JTR guidelines, as explained by the Comptroller General, the Agency acted improperly. It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issue is accorded substantial deference. See U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996). The Union's indirect challenge to the issue as framed by the Arbitrator does not demonstrate that the Arbitrator erroneously