[ v21 p405 ]
21:0405(54)AR
The decision of the Authority follows:
21 FLRA No. 54
GENERAL SERVICES ADMINISTRATION,
REGION 8
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 236
Union
Case No. 0-AR-927
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Robert W. Smedley filed by the Agency pursuant to 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 issue before the Arbitrator was whether the grievant was entitled
to travel and per diem expenses when she performed certain
representational activities on official time. The Arbitrator concluded
that the parties had negotiated and agreed upon the payment of travel
and per diem expenses for union representatives engaged in
representational activities. In reaching that conclusion, the
Arbitrator cited and discussed Article 27, Section 10 of the parties'
collective bargaining agreement, which provided that travel would be
paid in accordance with the Federal Service Labor-Management Relations
Statute; Article 6, wherein the parties had negotiated expense report
requirements as set forth in Appendix A of the agreement; and Appendix
A itself, which included provision for travel and per diem expense
claims. As to Appendix A, the Arbitrator found that merely filling out
the form did not guarantee payment of the expenses, but that a claim for
such expenses is subject to the exercise of the sound discretion of both
the union and management. The Arbitrator determined, however, that
management cannot simply deny all payments when it definitely made a
contractual commitment to pay the expenses in proper cases. As his
award, the Arbitrator directed that the union representative be
reimbursed for her reasonable and necessary travel and per diem expenses
for the representational functions involved, upon submission of the
information required in Appendix A.
II. FIRST EXCEPTION
A. Contention
In its first exception, the Agency contends that the Arbitrator's
award fails to draw its essence from the parties' agreement. In support
of this contention, the Agency argues that the Arbitrator did not set
forth specifically where in the parties' agreement the Agency's
obligation to pay travel and per diem is contained, other than Appendix
A. The Agency further argues that the Arbitrator placed a great deal of
weight on Appendix A and ignored language in the Appendix that it was
not to be read as source of rights to official time or travel and per
diem expenses.
B. Analysis and Conclusion
It is well-established that in order for an award to be found
deficient as failing to draw its essence from the parties' agreement,
the party making the allegation must demonstrate that the award cannot
in any rational way be derived from the agreement; or that the award is
so unfounded in reason and fact, so unconnected with the wording and
purpose of the agreement, as to manifest an infidelity to the obligation
of the arbitrator; or that the award evidences a manifest disregard for
the agreement; or that the award does not represent a plausible
interpretation of the agreement. E.g., American Federation of
Government Employees, National Border Patrol Council and U.S.
Immigration and Naturalization Service, Southern Region, Dallas, Texas,
3 FLRA 540, 543 (1980). In this case, the Authority finds that the
Agency has failed to demonstrate that the Arbitrator's award does not
draw its essence from the parties' agreement under any of the tests
described. Rather, the exception merely constitutes disagreement with
the Arbitrator's interpretation of the 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).
III. SECOND EXCEPTION
A. Contention
In its second exception, the Agency in effect contends that the
Arbitrator's award is contrary to section 7131 of the Statute because,
as interpreted by the U.S. Supreme Court's decision in Bureau of
Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983), the Agency is
not obligated under that provision to pay travel and per diem expenses
for union representatives on official time.
B. Analysis and Conclusion
The Arbitrator in this case found that the Agency had agreed to pay
the travel and per diem expenses of union representatives performing
labor-management relations activities. The Authority therefore finds
that while the Agency is correct in stating that section 7131 of the
Statute does not require agencies to pay travel and per diem to union
representatives on official time, in this case, as determined by the
Arbitrator, the Agency negotiated and agreed to pay such expenses. In
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 21 FLRA No. 2 (1986), the Authority found the following
union proposal to be within the duty to bargain under the Statute:
The employer agrees to pay the travel expenses incurred by
employees while using official time available under the terms of
this agreement.
In finding the proposal to be within the duty to bargain, 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. In this case, the Authority
concludes that the Arbitrator's award, based upon his interpretation of
the parties' agreement that the Agency had agreed to pay travel and per
diem expenses, is not contrary to section 7131 of the Statute as alleged
by the Agency in its exception.
IV. THIRD EXCEPTION
A. Contentions
In its third exception, the Agency contends that even assuming that
the Arbitrator was correct in finding that the Agency had agreed to pay
the travel and per diem expenses of union representatives on official
time, any such agreement is void because the subject of travel and per
diem is outside the duty to bargain under the Statute. In support of
its contention, the Agency argues that the duty to bargain only extends
to matters which are not inconsistent with Federal law and
Government-wide rules and regulations, and that negotiation of travel
and per diem is inconsistent with the Travel Expense Act, 5 U.S.C.
Section 5701 et seq., and Federal Travel Regulations (FTRs), 5 CFR part
101-7, which govern payment of such expenses. The Agency further argues
that the Travel Expense Act requires an evaluation of each individual
travel situation and a case-by-case determination by an agency as to
whether an employee's travel is sufficiently within the interest of the
Government so as to constitute official business warranting payment of
related expenses and, moreover, that any blanket requirement to pay
expenses such as the Arbitrator found the Agency had agreed to in this
case would be contrary to that law.
B. Analysis and Conclusions
As indicated above in the analysis and conclusion concerning the
Agency's second exception, the Authority expressly held in U.S. Customs
Service that a proposal essentially to the same effect as the
Arbitrator's interpretation of the parties' agreement here involved was
within the duty to bargain under the Statute. Moreover, the Authority
also expressly found that the proposal was not inconsistent with the
Travel Expense Act 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 labor-management relations activities. The Authority finds that the
Arbitrator's determination effectively constitutes, in terms of U.S.
Customs Service, a finding that the Agency had exercised its discretion
under the Travel Expense Act through negotiations and had determined
that the representational activities were sufficiently within the
interest of the United States so as to constitute official business.
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
FTRs. /*/ In this case, the Arbitrator provided that the travel and per
diem expense claim of the union representative was subject to the review
of the union and management in their sound discretion and expressly
directed reimbursement of only reasonable and necessary expenses of the
representative. Thus, the Arbitrator clearly directed the payment of
travel and per diem expenses only to the extent the expenses are
consistent with legal and regulatory requirements and restrictions.
Accordingly, the Authority concludes that the Arbitrator's award is
consistent with the Travel Expense Act and the FTRs and that the Agency
has failed to establish that the award is deficient as alleged in this
exception.
V. DECISION
Based on the foregoing analysis and conclusions, the Agency's
exceptions are denied.
Issued, Washington, D.C., April 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) 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).