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48 FLRA No. 144

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

(Agency)

and

OVERSEAS EDUCATION ASSOCIATION

(Union)

0-AR-2470

_____

DECISION

January 12, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Eric W. Lawson, Jr. 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 Rules and Regulations. The Agency filed an opposition to the exceptions.

The Arbitrator denied a grievance contesting the Agency's denial of a living quarters allowance (LQA) to the grievant. The Arbitrator found that the denial did not violate the parties' collective bargaining agreement and was not contrary to law or regulation. For the following reasons, we conclude that the Union has failed to establish that the award is deficient, and we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a teacher in Rhein Main, Germany, applied for and accepted a reassignment as coordinator for the Agency's School Improvement Program in Bremerhaven, Germany. The grievant was denied a LQA because, in the Agency's view, his reassignment was voluntary.

A grievance contesting the Agency's denial of LQA to the grievant and similarly-situated employees was denied and was submitted to arbitration. In the absence of a stipulation, the Arbitrator framed the issue as whether the Agency violated the parties' agreement by denying the grievant LQA.

The Arbitrator first addressed the parties' agreement, which concerned LQA for employees transferred under the parties' negotiated Transfer Program. He found that the grievant was not transferred under the Transfer Program, and that, therefore, the denial of LQA did not violate the agreement.⁽¹⁾

The Arbitrator also evaluated the grievance under section 031.12 of the Department of State Standardized Regulations (DSSRs), which defines entitlement to LQA, and Department of Defense Directive 1400.25-M (DoD Directive), which applies the DSSRs to civilian employees.⁽²⁾ The Arbitrator found that the grievant's relocation failed to satisfy the eligibility criteria for LQA set forth in the regulations. In particular, he determined that the grievant was neither required to relocate to a position beyond commuting distance nor to accept the transfer offered by the Agency.

The Arbitrator concluded that he was "[w]ithout statutory or regulatory guidance requiring" that the grievant receive LQA. Award at 16. Accordingly, he found that the Agency's denial of LQA to the grievant did not violate law or regulation and, as his award, he denied the grievance.

III. First Exception

A. Positions of the Parties

The Union asserts that the Arbitrator exceeded his authority by addressing a matter not submitted to arbitration. Specifically, the Union argues that, because the grievant was not relocated under the parties' negotiated Transfer Program, the Arbitrator erred in discussing that program.

The Agency responds that the Arbitrator properly exercised his authority in framing, and resolving, appropriate issues.

B. Analysis and Conclusions

An arbitrator exceeds his or her authority when, among other things, he or she resolves an issue not submitted to arbitration. U.S. Department of the Air Force, Air Force Logistics Command, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 37 FLRA 1049, 1052 (1990). However, in the absence of a stipulation by the parties, an arbitrator is authorized to formulate the issue to be decided, and we accord substantial weight to an arbitrator's formulation of issues. U.S. Department of the Army Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 41 FLRA 1149, 1152 (1991).

In this case, the issue was not stipulated by the parties, and the Union has not demonstrated that the manner in which the Arbitrator framed the issue was improper. Therefore, we conclude that the Arbitrator did not exceed his authority and we will deny this exception. See, for example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 47 FLRA 692, 698 (1993). We note, in this regard, that in its statement of issues to be resolved by the Arbitrator, the Union raised the issue of LQA entitlement under the parties' agreement, which incorporates the Transfer Program.

IV. Second Exception

A. Positions of the Parties

The Union asserts that the award conflicts with arbitral and Authority precedent wherein employees who relocated voluntarily were granted LQA because the relocations were deemed "management-generated."⁽³⁾ The Union also asserts that the award violates the Overseas Differentials and Allowances Act (the Act), which authorizes payment of allowances and benefits to Federal employees overseas. In addition, the Union argues that the award conflicts with the Act's implementing regulations, which are set forth in section 031.12 of the DSSRs,⁽⁴⁾ and with DoD Joint Travel Regulations, specifically CPM C4100.2.⁽⁵⁾

The Agency asserts that the Union's arguments constitute mere disagreement with the Arbitrator's determination that the grievant's transfer did not qualify the grievant for LQA and do not establish that the award is deficient.

B. Analysis and Conclusions

Under section 7122(a) of the Statute, an arbitration award will be found deficient if it is contrary to law, rule, or regulation. Initially, we reject the Union's argument that the award is deficient based on other arbitral decisions. As arbitration awards are not binding as precedent, a contention that an award conflicts with another arbitration decision provides no basis for finding an award deficient under the Statute. U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1043 (1991).

We construe the Union's assertion that the Arbitrator's award conflicts with Authority precedent as an exception that the award is contrary to law.⁽⁶⁾ In this connection, the Union concedes that the Authority decisions on which it relies involved transfers under negotiated transfer programs. In those decisions, employees were required to accept the relocations offered by the Agency, or risk termination of employment. For example, U.S. Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, Pacific Region, 43 FLRA 404 (1991); U.S. Department of Defense, Dependents Schools and Overseas Federation of Teachers, 41 FLRA 1362 (1991).

Here, on the other hand, the Arbitrator found that the grievant was not required to accept the transfer offered, nor was he transferred under a negotiated transfer program. The Union makes no assertion that the Authority has previously considered LQA entitlement under the School Improvement Program, pursuant to which the grievant was transferred, or otherwise has decided that relocations such as the grievant's entitled affected employees to LQA. Accordingly, we reject the Union's argument that the award is contrary to Authority precedent.

We also reject the Union's argument that the award is contrary to the Overseas Allowances and Differentials Act, Pub. L. No. 86-707, 74 Stat. 792 (1960)(codified at 5 U.S.C. §§ 5921-28 (1992)). Section 101 of the Act, containing the language on which the Union relies, was repealed in 1966, and was not subsequently reenacted into law. See Act of Sept. 6, 1960, Pub. L. No. 86-707, 1966 U.S.C.C.A.N. (74 Stat.) 798.

As to the Union's claim that the award is inconsistent with the Act's implementing regulations, we note that, under the DSSRs, LQA may be paid to an employee recruited abroad provided that the employee was required by the agency to move to another area. The DoD Directive provides not only that a management-generated relocation establishes LQA entitlement under the DSSRs, but also that a "move effected through a voluntary reassignment program is not considered to be a management-generated action." DoD 1400.25-M, CPM Subchapter 2.2b(6).

The fact that other relocations under other programs have been found to satisfy the DSSR criteria fails to demonstrate that the Arbitrator erred in finding that the grievant's relocation did not satisfy the criteria. In this regard, the Arbitrator found that the grievant's relocation was not a management-generated action, and, although the Union disagrees, the Union has not shown that the Arbitrator's finding is erroneous. Accordingly, the Union's assertions provide no basis for finding the award deficient.

V. Third Exception

A. Positions of the Parties

The Union asserts that the award is based on the Arbitrator's erroneous findings that: (1) the grievant was disqualified from receiving LQA because he was free to refuse a new position; (2) the grievant was not required to relocate; (3) the grievant's status as ineligible for LQA did not change upon his relocation for a new position; and (4) the important factor in Authority and arbitral decisions cited by the Union was that they involved reassignments under the Transfer Program. The Agency responds that the Union is merely disagreeing with the Arbitrator's evaluation of the evidence and his resolution of the issues.

B. Analysis and Conclusions

To establish that an award is based on nonfacts, the party making the allegation must demonstrate that the central facts underlying the award are clearly erroneous, but for which a different result would have been reached by the Arbitrator. See American Federation of Government Employees, Local 96 and U.S. Department of Veterans Affairs, Veterans Medical Center, St. Louis, Missouri, 47 FLRA 922, 929 (1993).

We conclude that the Union has failed to demonstrate that the award is deficient on this ground. The Union does not contest the Arbitrator's finding that the grievant could have refused the new position without risking termination of his employment. Moreover, although the Union argues that prior to 1991, employees were allowed to decline transfers under the Transfer Program, the Union concedes that the grievant's transfer was not a relocation under the Transfer Program. Similarly, the Arbitrator's finding that the grievant was not required to relocate does not, in our view, constitute a nonfact. The Arbitrator found, and the Union does not dispute, that the grievant was not required to accept a position requiring relocation. Accordingly, the Union's assertions are rejected.

We also reject the Union's assertion that the award is based "on the non[]fact that central to the prior arbitral and Authority decisions granting LQA to local hires who are reassigned is the fact that they were reassigned under the Transfer Program." Exceptions at 36 (emphasis omitted). The Union has not demonstrated either that the Arbitrator's discussion and characterization of the prior decisions was clearly erroneous or that such discussion was central to the award. As such, the argument does not provide a basis for finding the award deficient.

Finally, we conclude that the Arbitrator's finding that the grievant's LQA ineligible status did not change upon transfer does not constitute a nonfact. The Union provides no explanation for its assertion, and merely references its arguments that the grievant should have been accorded LQA. We conclude that the exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence and fails to establish that the award is deficient.

VI. Decision

The Union's exceptions are denied.

APPENDIX

DEPARTMENT OF STATE STANDARDIZED REGULATIONS
(Government Civilians, Foreign Areas)

030  APPLICABILITY

. . . .

031 United States Citizen Employees

031.1 Quarters Allowances

031.11 Employees Recruited in the United States

. . . .

031.12 Employees Recruited Outside the United States

Quarters allowances prescribed in Chapter 100 may be granted to employees recruited outside the United States, provided that:

a. the employee's actual place of residence in the place to which the quarters allowance applies at the time of receipt thereof shall be fairly attributable to his/her employment by the United States Government; and

b. prior to appointment, the employee was recruited in the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States, by:

(1) the United States Government, including its Armed Forces;

(2) a United States firm, organization, or interest;

(3) an international organization in which the United States Government participates; or

(4) a foreign government

and had been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States; or

c. as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of agency.

Subsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action.

An employee who was determined to be eligible to be granted a living quarters allowance under former Section 031.12d, last effective March 25, 1971 and last published in TL:SR-174 dated August 11, 1968, may continue to be eligible for and be granted a living quarters allowance while continuously employed in a foreign area and while he/she is otherwise eligible for such allowance.

DEPARTMENT OF DEFENSE CPM 1400.25-M
Chapter 592, Subchapter 2

QUARTERS ALLOWANCE

2-1. General

. . . .

2-2. Eligibility

. . . .

b. Employees recruited outside the United States (section 031.12, DSSR) will have their eligibility for quarters allowance determined at the time of hire and at any time pertinent changes in their individual status occur that may confer eligibility. . . .

. . . .

(6) The appropriate Major Command decides whether an employee acquires an LQA under section 031.12c of the DSSR . . . . The Major Command may redelegate this authority . . . . Section 031.12c provides that an LQA may be given an employee recruited outside the United States if, "as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of the agency." A "condition of employment," if not fulfilled, results in failure to gain or retain employment. Section 031.12c, DSSR, will be applied when an employee is relocated to another area by a management-generated action. It also will be applied when management must request that an employee not now eligible for LQA relocate to another area. A management request that an employee relocate is considered a management-generated action. A move effected through a voluntary reassignment program is not considered to be a management-generated action.

(a) To make determination under section 031.12c of the DSSR, the following tests must be applied:

1. Will employment be ended if the employee fails to accept relocation? If the answer is yes,

2. Is the relocation caused by management-generated action such as reduction in force or a transfer of function? If the answer is no,

3. Must management request an employee not now eligible for the LQA to relocate to another area? For example, was management unable to recruit a new employee or unable to recruit an employee currently with LQA eligibility to accept the relocation?

(b) To grant an allowance under section 031.12c, DSSR, and its implementing guidance, the answer must be affirmative to questions (a) 1. and 2. or to question (a) 3., above. . . .

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

1. The Arbitrator's finding that the Agency did not violate the parties' agreement is not challenged in the Union's exceptions and will not be further addressed.

2. Pertinent regulations are set forth in the Appendix to this decision.

3. The DoD Directive provides that a relocation will be deemed "management-generated" for purposes of establishing entitlement to LQA under the DSSRs where the employee relocates at management's request. DoD 1400.25-M, CPM 592, Subchapter 2.2b(6).

4. The Union relies on language in Section 101 of the Act, Pub. L. No. 86-707, 74 Stat. 792 (1960), providing for the "uniform treatment of [G]overnment employees stationed overseas" and "equitable administration of the laws compensating Government employees for the extra costs and hardships incident to their assignments overseas[.]" Exceptions at 28.

5. The Joint Travel Regulations define eligibility for payment of allowances for relocations which are determined to be in the interest of the Government. These regulations provide, in relevant part, that "[i]f a DoD component recruits or requests an employee to transfer (ie., reduction in force, transfer of function, agency career development program, or agency directed placement), it will regard such transfer as being in the interest of the Government. . . . If an employee actively pursues, solicits, or requests a position change resulting in the geographic move of such employee from one permanent duty station to another, such a transfer is primarily for the convenience and benefit of the employee." DoD CPM C4100.2.

6. Although the Union characterizes several of the Arbitrator's conclusions as nonfacts, it is clear that certain of these contentions constitute assertions that the award is contrary to law and regulation. We will, therefore, so construe them.

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