64 FLRA No. 49                   

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

and

PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS

(Union)

0-AR-4169

_____

DECISION

December 16, 2009

_____

Before the Authority:  Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members

I.          Statement of the Case

            This matter is before the Authority on exceptions to an award of Arbitrator Robert W. Landau filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations.  The Union filed an opposition to the Agency’s exceptions.

            The Arbitrator concluded that the Agency violated the parties’ collective bargaining agreement (the agreement) by refusing to reimburse two employees for rental car gasoline expenses, and by incorrectly deducting money from the travel reimbursement of one of the employees.  The Arbitrator ordered the Agency to reimburse the employees accordingly.

            For the reasons that follow, we deny the Agency’s exceptions.

II.        Background and Arbitrator’s Award

            The two grievants, who are based in Alaska, were assigned to attend training at the Federal Aviation Administration (FAA) Academy in Oklahoma City, Oklahoma, and they were authorized to use rental cars for local transportation during their training.  At the end of their training, when they submitted claims for reimbursement of their travel expenses, the Agency denied both grievants’ claims for reimbursement for gasoline purchased for their rental cars, on the ground that such reimbursement would be inconsistent with the parties’ collective bargaining agreement.  Award at 5.

            Additionally, the Agency further reduced one grievant’s claims for reimbursement on the ground that he had allegedly exceeded his maximum entitlement to reimbursement, as calculated by the Agency under the “constructive cost procedures” specified in Article 27, § 3 of the agreement.[1]  Id. at 5-6.  Specifically, the Agency calculated the grievant’s maximum entitlement by comparing:  (a) the constructive cost of driving a privately-owned vehicle (POV) from Seattle to Oklahoma City; with (b) the actual cost of airfare from Alaska to Oklahoma City.[2]  See id. at 10.     

            Grievances were filed, and when they were not resolved, they were submitted to arbitration and consolidated for hearing.  The parties permitted the Arbitrator to formulate the issues, and he stated them as follows:

1.   Did the Agency violate the collective bargaining agreement and past practice by denying reimbursement to the grievants for rental car gasoline expenses incurred while assigned to long-term training at the FAA Academy?

2.   Did the Agency violate the collective bargaining agreement by using an incorrect cost comparison to determine the grievants’ maximum entitlement to reimbursement of travel expenses for long-term training at the FAA Academy?

3.   If so, what is the appropriate remedy?

Id. at 2-3.

            With regard to the first issue, after examining the text of Article 27, § 3 the Arbitrator rejected the Agency’s contention that Article 27, § 3 prohibits reimbursing employees for rental car gasoline expenses.  Id. at 12-13.  Noting that the bargaining history regarding Article 27 did not clarify the meaning of the phrase “local mileage is not authorized,” the Arbitrator found that the best evidence of the parties’ mutual intent regarding reimbursement of rental car gasoline expenses was their past practice.  Id.  He noted extensive testimony and documentation from Union witnesses that the Agency had “consistently” reimbursed Alaska-based employees for such expenses when they have been assigned to the Academy.  Id. at 14.  Moreover, the Arbitrator found that the Agency “did not offer any equivalent rebuttal evidence showing that rental car gasoline expenses were not reimbursed[.]”  Id.  Rather, the Arbitrator found that the Agency’s evidence showed that it had either reimbursed Alaska-based employees either in full or for one tank of gasoline for their rental cars, and he rejected the Agency’s attempt to disavow the earlier payments.  Because the evidence demonstrated “a consistent and mutually accepted practice of the parties over a period of years[,]” the Arbitrator concluded that the Agency could not unilaterally change that practice.  Id. at 15.

            With regard to the second issue, the Arbitrator noted that the Agency had compared the cost of driving a POV from Seattle to Oklahoma City with the cost of flying between Alaska and Oklahoma City.  See id. at 16.  The Arbitrator also noted the Union’s argument that the Agency should have compared the cost of driving a POV from Seattle to Oklahoma City with the cost of flying between Seattle – not Alaska – and Oklahoma City.  See id. at 16-17.

            The Arbitrator stated that both Union and Agency witnesses testified that in order “to accomplish a fair cost comparison, the same starting and ending points should be used.”  Id. at 16.  In addition, the Arbitrator found that although the parties’ 1992 agreement had referenced “the cost of roundtrip air fare between the employee’s sector headquarters and the Academy,” that wording was removed from the parties’ agreement in 1996 and also was not in the current (2000) agreement.  Id. at 4.  According to the Arbitrator, the Agency’s proposed formula was “like comparing apples to oranges” because it used different starting and ending points, while the Union’s interpretation conformed to the testimony concerning the parties’ intention in revising the wording in 1996.  Id. at 17.  Moreover, the Arbitrator stated that he gave little weight to a 1975 Comptroller General’s opinion, cited by the Agency, concerning a provision of the Federal Travel Regulations (FTRs), as that opinion involved wording different from that in the parties’ agreement and did not take into account the parties’ bargaining history. 

Id. at n.3. 

            Consequently, the Arbitrator sustained the grievance, and he directed the Agency to reimburse the grievants accordingly.  Id. at 17-18.

III.       Positions of the Parties

            A.        Agency’s Exceptions

            The Agency argues that the award is contrary to law, specifically:  (1) a Comptroller General opinion, 55 Comp. Gen. 192 (1975); (2) the FTRs and the FAA Travel Policy that is modeled after the FTRs; and (3) the doctrine of sovereign immunity.  Exceptions at 9-11. 

            In addition, the Agency contends that the award fails to draw its essence from the parties’ agreement because it requires the Agency to perform a constructive-cost comparison that is not based in the agreement.  Id. at 7.  For the same reason, the Agency claims that the Arbitrator exceeded his authority.  Id. 

            The Agency also contends that the award is based on a nonfact because, in finding that the Union’s proposed method of constructive-cost comparison was the appropriate method, the Arbitrator relied on witnesses’ answers that responded to hypothetical questions.  Id. at 8.  In this regard, the Agency notes that three Agency witnesses responded to a hypothetical question regarding how cost comparisons would be done for travel from Washington, D.C. to Oklahoma City, and asserts that “[a] hypothetical is a non-fact.”  Id.

            Finally, the Agency argues that the Arbitrator denied it a fair hearing by refusing to allow it to question a Union witness about whether his rental car gasoline expenses in a 2003 travel voucher were for personal or official use.  Id. at 11.  The Agency maintains that it needed to elicit this information to rebut the Union’s past-practice argument, and that it was prejudiced by the Arbitrator’s refusal to allow the testimony.  Id.

            B.        Union’s Opposition

            With regard to the Agency’s citations to a Comptroller General decision and the FTRs, the Union asserts that the FAA has been exempt from the FTRs since 1996, as the FAA Travel Policy itself states.  Opp’n at 9-10.  With regard to sovereign immunity, the Union argues that the award merely requires the Agency to pay expenses that it has consented, in its Travel Policy and the agreement, to pay.  Id. at 16.  In this connection, the Union asserts that the award ordered the Agency to reimburse the grievants for gasoline expenses related to their use of rental cars for official purposes, and does not award reimbursement for personal use of rental cars.  Id.

            In addition, the Union argues that the Arbitrator’s finding regarding the appropriate method for conducting constructive-cost comparisons draws its essence from the parties’ agreement.  Id. at 11-12.  The Union also argues that the Arbitrator’s reliance on answers to hypothetical questions was appropriate and does not demonstrate that the award is based on a nonfact.  Id. at 14-15.

            Finally, the Union contends that the Arbitrator did not deny the Agency a fair hearing.  According to the Union, the witness whose testimony the Agency sought to impeach was only one of many who gave examples of a past practice, and, as a result, the Arbitrator’s restriction on the questioning of that witness did not prejudice the Agency.  Id. at 17.

IV.       Analysis and Conclusions

            A.        The award is not contrary to law.

            When a party’s exceptions challenge an award’s consistency with law, the Authority reviews the exceptions de novo.  NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing U.S. Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).  In applying the standard of de novo review, the Authority evaluates whether the arbitrator’s legal conclusions are consistent with the applicable standard of law.  See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998).  In making that evaluation, the Authority defers to the arbitrator’s underlying factual findings.  Id.

            The Agency argues that the award is contrary to the FTRs and a Comptroller General decision applying the FTRs.  However, pursuant to 49 U.S.C. § 40122(g), the FTRs (and, thus, the cited Comptroller General opinion) do not apply to the Agency -- a fact noted in § 300-1.2 of the FAA Travel Policy.[3]  See Opp’n, Attachment 4.  Thus, in determining employees’ entitlement to travel reimbursement, it is appropriate to rely on the FAA Travel Policy and the parties’ agreement, not the FTRs and the cited Comptroller General decision.  In addition, the Authority has held that “collective bargaining agreements, rather than agency-wide regulations, govern the disposition of matters to which they both apply.”  U.S. Dep’t of Transp., Fed. Aviation Admin., Mike Monroney Aeronautical Ctr., 58 FLRA 462, 464 (2003).  Therefore, the parties’ dispute involves a matter of contract interpretation, and the Agency’s exception does not provide a basis for concluding that the award is contrary to law.

            With regard to sovereign immunity, the Agency argues that it has not consented to reimburse employees for car rental gasoline expenses “when there is no showing that the vehicle was only used for official government travel[.]”  Exceptions at 10.  This argument is based on a misreading of the award.  In this regard, the Arbitrator acknowledged that “a rental car may be used only for ‘official purposes’ as described in FAA Travel Policy § 301.10.220[,]” Award at 11, and the Union agrees that employees are only entitled to reimbursement for gasoline when they use rental cars for official purposes as defined in the Travel Policy.  Opp’n at 15-16.  The Arbitrator did not award reimbursement for purpose other than official government travel, and as such, the premise of the Agency’s argument is incorrect.

            Accordingly, we deny the Agency’s contrary-to-law exceptions.

            B.        The award draws its essence from the agreement, and the Arbitrator did                                         not exceed his authority.

            In reviewing an arbitrator’s interpretation of a collective bargaining agreement, the Authority applies a deferential standard of review.  AFGE, Council 220, 54 FLRA 156, 159 (1998).  Accordingly, the party appealing the award must establish 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 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 U.S. Dep’t of Labor (OSHA), 34 FLRA 573, 575 (1990).

            Although the Agency contends that the award requires the Agency to perform a constructive-cost comparison that is not set forth in the agreement, the Arbitrator relied on witness testimony regarding what the parties intended when they revised Article 27, § 3 in 1996.  The Arbitrator’s reliance on the parties’ bargaining history was not irrational, and the Agency does not demonstrate that the Arbitrator’s interpretation of Article 27, § 3 is unfounded, implausible, or in manifest disregard of that provision.  Accordingly, we deny the Agency’s essence exception.

            As noted above, the Agency asserts that the Arbitrator exceeded his authority for the same reason that the award allegedly fails to draw its essence from the agreement.  Consistent with our denial of the essence exception, we also deny the exceeded-authority exception.  See NTEU, 62 FLRA 45, 48 (2007). 

            C.        The award is not based on a nonfact.

            According to the Agency, the award is based on a nonfact because the Arbitrator relied on witnesses’ answers to hypothetical questions when he agreed with the Union’s proposed formula for calculating maximum reimbursement.  To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.  U.S. Dep’t of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry AFB).  However, the Authority will not find an award deficient as based on a nonfact on the basis of an arbitrator’s determination on any factual matter that the parties disputed at arbitration.  See id. at 594.

            Although the Arbitrator cited testimony of four witnesses, and three of those witnesses responded to hypothetical questions as to how they would normally perform cost comparisons, the Agency has not demonstrated that the Arbitrator acted improperly in asking these questions or that any arbitral finding resulting from this testimony is clearly erroneous.  To the extent that the Agency is arguing that the Arbitrator made an incorrect factual finding when he determined what the appropriate cost comparison should be, that matter was disputed below.  See Award at 8-9 (Union position); id. at 10-11 (Agency position).  As such, the Agency’s argument does not provide a basis for finding that the award is based on a nonfact.  See Lowry AFB, 48 FLRA at 594.  Accordingly, we deny this exception.

            D.        The Arbitrator did not deny the Agency a fair hearing.

            The Agency contends that the Arbitrator denied the Agency a fair hearing by refusing to allow it to impeach a Union witness regarding reimbursements that the witness had received several years before the hearing.  An award will be found deficient on the ground that the arbitrator failed to conduct a fair hearing where a party demonstrates that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceedings so prejudiced a party as to affect the fairness of the proceeding as a whole.  AFGE, Local 1668, 50 FLRA 124, 126 (1995).

            The Agency’s stated purpose for asking the Union witness about his reimbursements several years earlier was to determine whether he had driven a car for personal or official use, and the Arbitrator ruled that such questions were inappropriate.  See Tr. at 75-77.  Thus, the excluded testimony involved travel expenses incurred by the witness and reimbursed by the Agency long before the hearing -- not testimony of the grievants about their own rental-car expenses.  There is no basis for finding that the Agency was prejudiced by its inability to ask the witness about these matters, and in light of the broad latitude given to arbitrators in such procedural and evidentiary matters, the Agency has not demonstrated that the Arbitrator denied it a fair hearing.  Accordingly, we deny this exception.

V.        Decision

            The Agency’s exceptions are denied.