[ v21 p421 ]
21:0421(58)AR
The decision of the Authority follows:
21 FLRA No. 58
BUREAU OF RECLAMATION, UPPER COLORADO
REGION, COLORADO RIVER STORAGE PROJECT,
POWER OPERATIONS OFFICE, U.S. DEPARTMENT
OF THE INTERIOR
Activity
and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO, LOCAL UNION 2159
Union
Case No. 0-AR-1055
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Leo Weiss filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute and part 2425 of the
Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The parties submitted to arbitration the stipulated issue of whether
the Union's claim for travel and per diem expenses for union negotiators
was an arbitrable matter and, if so, whether Article I, Section 1.8,
paragraph 2 of the Basic Agreement is null and void or unenforceable.
That provision in part provided that "(e)mployees authorized to
represent the Union shall be granted official time, travel and per diem
for negotiations . . . and related activities." According to the
stipulated facts, the Basic Agreement was approved by the Agency
contingent upon the understanding that travel and per diem payments
under Article I, Section 1.8 meet certification requirements that the
travel is in the primary interest of the Government and in accordance
with rulings of the Comptroller General. Upon issuance of the Supreme
Court's decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464
U.S. 89 (1983), and relying on Office of Personnel Management (OPM)
guidance contained in Federal Personnel Manual Letter 711-162, the
Agency declared the language of Article I, Section 1.8 relating to
payment of travel and per diem expenses to be null and void. Following
this action, the Activity denied the claims of three employees for their
travel and per diem expenses in connection with negotiations. The
employees filed the grievances which are the subject of this
arbitration.
The Arbitrator held that the grievances were arbitrable disputes over
the interpretation and application of Section 1.8 of the Agreement. On
the substantive issue, the Arbitrator rejected the Activity's
interpretation of the Supreme Court's decision in Bureau of Alcohol,
Tobacco and Firearms (BATF), and found that nothing in that decision
prohibited agencies and unions from entering into an agreement to
reimburse employee union negotiators for travel and per diem expenses.
He also found that the guidance provided in FPM Letter 711-162 did not
apply to prevent payment of travel and per diem in this case.
Consequently, he ruled that Section 1.8 of the Basic Agreement was not
null and void but an enforceable provision which the Activity had
violated by refusing to pay the grievants for travel and per diem
expenses related to attendance at negotiating meetings. He sustained
the grievances and directed the Activity to make the grievants whole for
any losses they may have suffered.
III. FIRST EXCEPTION
A. Contentions
In its first exception, the Agency contends that the Arbitrator erred
by finding that Section 1.8 was "negotiated" into the Basic Agreement,
and further argues that the contract language was not the product of
bargaining but merely incorporated the existing statutory entitlement.
B. Analysis and Conclusions
The Authority finds that the Agency in this exception has in no
manner shown how the Arbitrator's award, based upon his interpretation
of the parties' agreement, is deficient. Instead, the exception
constitutes nothing more than disagreement with the Arbitrator's
interpretation of the parties' agreement and therefore does not provide
any basis for finding the award deficient. E.g., The Philadelphia
Regional Office, District Office Operations, Social Security
Administration and American Federation of Government Employees, AFL-CIO,
Local 3186, 15 FLRA 211 (1984). Accordingly, this exception must be
denied.
IV. SECOND EXCEPTION
A. Contentions
In its second exception, the Agency contends that the Arbitrator
failed to recognize that the Agency had constructively disapproved
Section 1.8 as written, by making its approval contingent upon the
understanding that any travel and per diem payments made pursuant to the
provision must meet the certification requirements that travel is in the
primary interest of the Government and in accordance with rulings of the
Comptroller General. Consequently, the Agency maintains that the
Arbitrator improperly resolved an issue relating to the duty to bargain.
B. Analysis and Conclusions
As to this exception, the Authority finds that contrary to the
Agency's assertions, the issue decided by the Arbitrator in this case
does not relate to the negotiability of a Union proposal or otherwise
relate to the duty to bargain under the Statute. In this regard, the
Agency's reliance on Federal Correctional Institution, Texarkana, Texas,
Federal Prison System and American Federation of Government Employees,
Local 2429, Texarkana, Texas, 19 FLRA No. 26 (1985) is misplaced. The
dispute in that case specifically involved management's refusal to
approve certain provisions in a supplemental agreement on the ground
that they interfered with management's rights under section 7106(a) of
the Statute. The Authority held that the award in that case was
deficient because the arbitrator, by deciding that the agency had an
obligation to bargain over the disputed provisions, had necessarily
decided a negotiability dispute, and such disputes can only be resolved
by the Authority. In this case, however, the Arbitrator was asked to
interpret a provision embodied in a negotiated agreement which had been
approved by the agency head. The Authority therefore concludes that
this exception constitutes nothing more than disagreement with the
Arbitrator's interpretation and application of the parties' collective
bargaining agreement and provides no basis for finding the award
deficient. Id.; National Federation of Federal Employees, Local 1418
and U.S. International Communication Agency, Voice of America, 9 FLRA
980 (1982). Accordingly, this exception must be denied.
V. THIRD, FOURTH AND FIFTH EXCEPTIONS
In its third exception, the Agency alleges that the award is
deficient because the Arbitrator erred in his interpretation and
application of the Supreme Court's decision in BATF to the facts of this
case. The Agency contends that the Arbitrator in making his award
overlooked the essential requirement that before travel and per diem
expenses can be approved an agency must make a determination that the
travel serves the convenience of the agency or is in the primary
interest of the Government. The Agency further contends that such a
determination must be made on a case-by-case basis and, therefore, the
provision in Section 1.8 of the agreement establishing a blanket policy
of paying travel and per diem expenses is unenforceable.
Similarly, in its fourth and fifth exceptions, the Agency alleges
again in essence that the Arbitrator erred in his interpretation of the
BATF decision by failing to enforce the requirement that payment of
travel and per diem expenses must be certified to be in the interest of
the Government. The Agency maintains that Article I, Section 1.8 is
unenforceable and therefore the Union's claim is not grievable or
arbitrable and, further, the Arbitrator's award requires the performance
of an illegal act, i.e., payment of travel and per diem without the
required certification.
B. Analysis and Conclusion
In its decision in BATF, the Supreme Court held that there was no
entitlement to travel and per diem expenses under section 7131(a) of the
Statute, but the decision did not pertain to circumstances where, as
here, an agency was found to have negotiated an agreement provision
requiring it to pay such expenses. In this regard, Article I, Section
1.8 of the parties' agreement in this case which the Arbitrator found to
be binding on the Agency is essentially the same as the proposal found
by the Authority to be within the duty to bargain in National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service, 21
FLRA No. 2 (1986). The proposal in that case provided:
The employer agrees to pay the travel expenses incurred by
employees while using official time available under the terms of
this agreement.
In that decision, which was rendered in light of the Supreme Court's
decision in BATF, the Authority stated that the Statute is silent on
whether travel expenses incurred in the conduct of labor-management
relations activities are payable from Federal funds. Id. at 3.
Moreover, the Authority ruled in U.S. Customs Service, that the
proposal in dispute was not inconsistent with the Travel Expense Act, 5
U.S.C. Section 5701 et seq., because that Act does not prohibit an
agency from exercising, through negotiations, its discretion to
determine whether travel attendant to labor-management relations
activities is sufficiently within the interest of the United States so
as to constitute official business for purposes of reimbursement of
related travel expenses. Id. at 6. In this case, the Arbitrator
determined that the Agency agreed to pay the travel and per diem
expenses related to the labor-management relations activities covered by
the official time provision of the parties' agreement. The Authority
finds that the Arbitrator's determination effectively constitutes, in
terms U.S. Customs Service, a finding that the Agency had exercised its
discretion under the Travel Expense Act through negotiations and had
thereby determined that the covered activities were sufficiently within
the interest of the United States so as to constitute official business.
Therefore, the Agency's third, fourth and fifth exceptions also fail to
establish that the award is deficient as alleged. Accordingly, these
exceptions must also be denied.
Additionally, in finding the proposal in U.S. CUSTOMS Service to be
within the duty to bargain, the Authority concluded that the proposal
would not require the agency to authorize the payment of expenses which
did not comport with regulatory requirements and restrictions. Id. at
6. The Authority based its conclusion on the union's acknowledgment
that the payment of any travel expenses flowing from the proposal, if
agreed upon by the parties, would be subject to the provisions of the
Federal Travel Regulations (FTRs). /1/ In this case, the Arbitrator in
directing the payment of travel and per diem expenses in connection with
the covered activities did not provide for the Agency to determine the
propriety of particular travel and per diem expenses under the FTRs.
Consequently, the Authority must modify the award to assure that it is
consistent with the requirements of the FTRs.
VI. DECISION
Accordingly, pursuant to section 2425.4 of the Authority's Rules and
Regulations and for the reasons stated above, the Agency's exceptions
are denied but that portion of the award directing payment of travel and
per diem expenses is modified to provide as follows: /2/
The Employer is hereby directed to make the Grievants whole for
any losses they may have suffered as a result of its breach of
Article 1, Section 1.8 of the Basic Agreement, insofar as
consistent with applicable requirements of the Federal Travel
Regulations.
Issued, Washington, D.C., April 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES$
(1) The FTRs, 41 CFR part 101-7, have been held to be Government-wide
rules or regulations within the meaning of the Statute. National
Federation of Federal Employees, Local 29 and U.S. Army Engineer
District, Kansas City, Missouri, 13 FLRA 23, 24 (1983).
(2) In view of this decision, the Authority finds that it is not
necessary to rule on the Union's motion for leave to file a request for
reconsideration of the Authority's Order of January 14, 1986, granting
the Agency's request for a temporary stay of the Arbitrator's award.