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National Air Traffic Controllers Association (Union) and United States, Department of Transportation, Federal Aviation Administration (Agency)

[ v60 p398 ]

60 FLRA No. 79

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

0-AR-3829

_____

DECISION

November 15, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Mark M. Grossman filed by the Union under § 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 grievants' official duty stations.

      For the reasons that follow, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      The grievants' official duty stations were scheduled to be relocated in February 2004. In August 2002, the Agency and Union agreed to a Memorandum of Understanding (MOU) over several issues relating to the relocation, including employees' entitlement to PCS expenses, which are paid to employees who relocate their permanent residence "incident to the change of . . . official [duty] station[.]" [n1]  Award at 2.

      Section 1 of the MOU provided that employees whose commutes increased by thirty or more miles were automatically entitled to PCS expenses. Section 2 of the MOU covered employees whose commutes increased by between ten and thirty miles and required the Agency to determine entitlement to PCS expenses based on the consideration of relevant factors. Section 3 stated that employees whose commutes increased by less than ten miles were generally not entitled to PCS expenses, except under special circumstances. Section 4 indicated that employees covered under §§ 2 or 3 could request that an Agency review panel consider factors, including any supporting information and documentation submitted by the employees, that might affect their eligibility for PCS expenses.

      The grievants, who were covered under §§ 2 or 3 of the MOU, requested that the review panel consider their eligibility for PCS expenses. The review panel determined that the grievants were not entitled to PCS expenses. The Union filed a grievance asserting that the denial of PCS expenses violated the parties' agreement and applicable laws, rules and regulations. The grievance was unresolved and submitted to arbitration, where the Arbitrator resolved the issue of whether the Agency violated the parties' agreement and applicable laws, rules and regulations in denying the expenses. See id. at 6-7, 13.

      The Arbitrator determined that the MOU provided the Agency discretion, subject to the parties' grievance and arbitration procedure, to determine whether to provide PCS expenses to employees covered under §§ 2 or 3. The Arbitrator found that the Agency's exercise of its discretion must be reasonable and not arbitrary, capricious, or discriminatory. The Arbitrator further found that the determination of whether the Agency acted arbitrarily must be made based upon the information possessed by the Agency at the time it made the decision.

      The Arbitrator stated that employees had the burden to demonstrate entitlement to PCS expenses. The Arbitrator found that none of the grievants supplied the review panel with any information or documentation that demonstrated entitlement to PCS expenses. In addition, the Arbitrator found that the supporting information and documentation submitted by the grievants at the hearing was irrelevant because it was not presented to the review panel. [ v60 p399 ]

      The Arbitrator determined that the only information the review panel had before it was the fact that the grievants' commuting time had increased and that this fact alone was not sufficient to demonstrate an entitlement to PCS expenses for the grievants. Based on the foregoing, the Arbitrator found that the Agency's decision to deny PCS expenses was not arbitrary, capricious, or discriminatory. Accordingly, the Arbitrator concluded that the Agency did not violate the parties' agreement and applicable laws, rules, and regulations.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the award is contrary to § 302-1.7 of the Federal Travel Regulations (FTRs), which, according to the Union, provides that an increase in an employee's new commute of at least ten miles is incident to a change of official station. [n2]  According to the Union, all the grievants met or exceeded the ten-mile requirement.

      The Union further contends that the award fails to draw its essence from Article 58, §§ 1 and 3 of the parties' agreement. [n3]  In this regard, the Union argues that under § 1, the Agency is obligated to exercise its discretion "in a way most advantageous to the employee[,]" and that the Agency's denial of PCS expenses for the grievants was not "reimbursement to the maximum extent permissible." Exceptions at 3. With regard to § 3, the Union contends that all the grievants met the ten-mile requirement and that the Agency failed to appropriately exercise its discretion when it denied the PCS expenses.

      Finally, the Union argues that the award is based on a nonfact because the Arbitrator erred in determining that the grievants did not provide any supporting information or documentation demonstrating entitlement to PCS expenses. In this regard, the Union asserts that the Arbitrator's finding that the burdens, financial and otherwise, of not moving closer to the new official duty station "were not alleged in the employee's requests for consideration of the PCS funds is clearly incorrect." Id. at 6.

B.      Agency's Opposition

      The Agency contends that the Arbitrator properly interpreted the MOU as providing the Agency discretion in determining the grievants' eligibility for PCS expenses. The Agency also contends that the Arbitrator correctly determined that the grievants did not provide the review panel with any supporting information and documentation, and that he properly found that the information concerning the grievants' alleged financial burden presented at the arbitration hearing was irrelevant.

IV.      Analysis and Conclusions

A.      The award is not contrary to law.

      As the Union's exceptions concern whether the award is contrary to law, the Authority's review is de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to an arbitrator's underlying factual findings. Id.

      The Union contends that the award is contrary to § 302-1.7 of the FTRs, which was superceded by an amendment to § 302 of the FTRs, effective February 19, 2002. [n4]  Section 302-2.6 of the current FTRs addresses the reimbursement of relocation expenses for employees whose commutes have increased between ten and fifty miles. [n5]  See FTRs Amdt. 98, 66 Fed. Reg. 58194 (Nov. 20, 2001).

      As set forth below, we find that the award is not inconsistent with either the current § 302-2.6 or the former § 302-1. Accordingly, without determining which version applies, [n6]  we deny this exception.

      In this regard, the former § 302-1.7 provided, in pertinent part, that relocation expenses "shall be authorized [ v60 p400 ] only when the agency determines that the relocation was incident to the change of official station" and that even when a commute increased by ten miles, "circumstances surrounding a particular case may suggest that the move of residence was not incident to the change of official station." On its face, this provision provides the Agency with the discretion to determine whether to pay PCS expenses, whether or not a commute increased by ten miles. Furthermore, the Authority has specifically held that the "language in [302-1.7] provides considerable discretion to an agency in making PCS payment determinations." AFGE, Council 163 and AFGE, Local 2551, 54 FLRA 880, 887 (1998).

      The current § 302-2.6 provides, in pertinent part, that an agency "may authorize the reimbursement of relocation expenses of less than fifty miles" on a "case-by-case basis" and that an increased commute of at least ten miles is only one of the criteria to be considered. Thus, similar to § 302-1.7, the plain wording of this provision provides the Agency with the discretion to determine whether to pay PCS expenses, whether or not a commute increased ten miles.

      Based on the foregoing, we find that the Union has failed to demonstrate that the award is inconsistent with the FTRs, and we deny this exception.

B.      The award does not fail to draw its essence from the parties' agreement.

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Union contends that the Agency was required to approve PCS expenses under the parties' agreement. However, the Arbitrator specifically interpreted the MOU as providing the Agency with the discretion to evaluate the specified factors and any special circumstances in determining whether to approve PCS expenses. See Award at 12. The Arbitrator's conclusion that the Agency was permitted to exercise its discretion in this manner is not implausible, irrational, or unfounded in fact. Accordingly, we find that the Union has not shown that the award fails to draw its essence from the parties' agreement, and we deny this exception.

C.      The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry AFB, Denver, Colo., 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. See AFGE, Local 1923, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them. See AFGE, Local 2459, 51 FLRA 1602, 1607-08 (1996).

      The Union argues that the award is based on a nonfact because the Arbitrator erred in determining that the grievants did not provide any supporting information or documentation along with their requests to the review panel. However, the Union provides no evidence, and nothing in the award indicates, that the grievants presented the review panel with the supporting information discussed in its exceptions. In fact, the Union does not assert that this supporting information was presented to the review panel; the Union claims only that it was presented to "the Agency." Exceptions at 5. As such, the Union has not demonstrated that a central fact underlying the award is clearly erroneous, but for which the Arbitrator would have reached a different conclusion. See AFGE, Local 2206, 59 FLRA 307, 311 (2003). Accordingly, we deny this exception.

V.      Decision

      The Union's exceptions are denied.

Footnote # 1 for 60 FLRA No. 79 - Authority's Decision

   The MOU provides, in relevant part:

Section 2. If the employee's commute is increased by 10 miles or more, but less than 30 miles, the Agency will . . . consider any relevant factors which may affect the employee's commute . . . .
Section 3. If an employee's com[m]ute is increased by less than 10 miles, and special circumstances exist, the employee may request review of the relocation by the Agency.
Section 4. If the employee is covered by Section 2 or 3, the Agency will provide the employee the right to request consideration of factors/circumstances that might affect their eligibility. [T]he employee [may] . . . provide the [A]gency [review panel] with . . . all necessary supporting information/documentation.

Award at 7-8.

Footnote # 2 for 60 FLRA No. 79 - Authority's Decision

   41 C.F.R. § 302-1.7 is set forth infra note 4.

Footnote # 3 for 60 FLRA No. 79 - Authority's Decision

   Article 58 provides, in pertinent part, that:

Section 1. [R]eimbursement for travel expenses shall be the maximum extent permissible in accordance with the Federal Travel Regulations (FTR), as amended.
. . . .
Section 3. Employees . . . are authorized reimbursement of moving expenses for involuntary moves resulting from facility relocation . . ., when the following conditions are met:
a.      official stations are separated by at least ten [(10)] miles; and
b.      the [A]gency has determined that the relocation was incident to the change of official station, in accordance with Section 302-1.7 of the FTR.

Exceptions at 3.

Footnote # 4 for 60 FLRA No. 79 - Authority's Decision

   41 C.F.R. § 302-1.7 provided, in pertinent part:

When the change of official station involves . . . at least 10 miles . . . [relocation expenses] shall be authorized only when the agency determines that the relocation was incident to the change of official station. Ordinarily, a relocation of residence shall not be considered as incident to a change of official station unless the one-way commuting distance [has increased] at least 10 miles . . . . Even then, circumstances surrounding a particular case (e.g., relative commuting time) may suggest that the move of residence was not incident to the change of official station.
Footnote # 5 for 60 FLRA No. 79 - Authority's Decision

   41 C.F.R. § 302-2.6 provides, in pertinent part:

On a case-by-case basis and having considered the following criteria, the . . . agency . . . may authorize the reimbursement of relocation expenses of less than 50 miles when [it] determines that it is in the interest of the Government; and
(a) The one way commuting pattern between the old and new official station increases by at least 10 miles but no more than 50 miles; or
(b) There is an increase in the commuting time to the new official station; or
(c) A financial hardship is imposed due to increased commuting costs.
Footnote # 6 for 60 FLRA No. 79 - Authority's Decision

   We note that the relevant events in this grievance -- the MOU, the relocation and the filing of the grievances-- occurred while the current regulation, § 302-2.6, was in effect. However, the parties' agreement was entered into prior to the amendment to § 302 and specifically incorporates the former § 302-1.7. See Transcript at 18, Attachment to Union's Exceptions. In this regard, Government-wide regulations, other than regulations implementing 5 U.S.C. § 2302, do not control over conflicting provisions in an agreement if the agreement was in effect before the date the regulation was prescribed. See 5 U.S.C. § 7116(a)(7).