[ v23 p661 ]
23:0661(87)CA
The decision of the Authority follows:
23 FLRA No. 87
VETERANS ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL COUNCIL OF VA
LOCALS
Charging Party
Case No. 3-CA-30727
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based upon a stipulation entered into by the Respondent,
the Charging Party and the General Counsel. The case involves an
alleged violation of section 7116(a)(1) and (6) of the Federal Service
Labor-Management Relations Statute (the Statute) when the Respondent
notified the Charging Party and the Federal Service Impasses Panel (the
Panel) that it would not comply with the Arbitrator's Opinion and
Decision in Veterans Administration, Washington, D.C. and National
Council of VA Locals, AFGE, 83 FSIP 46, concerning the payment of travel
and per diem expenses.
II. Background
During ground rules negotiations for the parties' first master
collective bargaining agreement, the Charging Party requested the
assistance of the Panel in resolving an impasse, principally on the
matter of payment for travel and per diem expenses. There was some
disagreement among the parties as to whether the matter was properly
before the Panel. The Respondent argued that the Charging Party's
proposals regarding travel and per diem expenses were not negotiable
and, also, that the issue should be resolved by the Authority, not the
Panel. The parties were subsequently able to complete negotiations on
the ground rules except for the matter of travel and per diem expenses.
Thereafter, the Panel referred these issues to its Executive Director
for arbitration. The Executive Director was given "the authority to
mediate . . . (and to) dispose of (any remaining unresolved issues) by
(1) issuing a decision resolving some or all of the issues and (2)
declining to hear some or all of the issues until such time as any
threshold negotiability issues are resolved in an appropriate forum." On
July 15, 1983, the Executive Director issued his "Arbitrator's Opinion
and Decision" in which he ordered the Respondent to adopt the Charging
Party's proposals providing for reimbursement of travel and per diem
expenses to employees engaged in preparation for bargaining as well as
actual negotiations. /1/ Following receipt of the Arbitrator's Opinion
and Decision, the Respondent informed the Panel and the Charging Party
that it would not comply with the decision. The Respondent also
petitioned the Panel to withdraw the Opinion and Decision following
issuance of the United States Supreme Court's decision in Bureau of
Alcohol, Tobacco and Firearms (BATF) v. Federal Labor Relations
Authority, 464 U.S. 89 (1983), which the Panel declined to do. A
petition for reconsideration filed by the Respondent was similarly
denied by the Panel. During the ensuing negotiations between the
parties for their master agreement, the parties stipulated that the
Charging Party paid approximately $50,000 for travel and per diem
expenses to its union/employee negotiators, which payment otherwise
would have come from the Respondent's appropriated funds.
III. Positions of the Parties
The Respondent moves for dismissal of the unfair labor practice
allegation on the basis that the issues raised involve negotiability
questions over which the Panel does not have jurisdiction. It argues
that both the Authority and the Panel recognized that a legitimate
negotiability question was involved because of actions taken in other,
unrelated proceedings involving the negotiability of travel and per diem
payments. The Respondent also raises certain arguments regarding the
cost of travel and per diem payments -- specifically, that such payments
are inconsistent with the agency's statutory right to determine its
budget and that there is no statutory authorization for such
expenditures.
The Charging Party argues generally that payment of travel and per
diem expenses is a negotiable condition of employment, that the Panel
properly asserted jurisdiction over the impasse, and consequently that
the failure to comply with the Arbitrator's Opinion and Decision
violated the Statute.
The General Counsel argues that the failure and refusal to comply
with the express provisions of section 7119(c) of the Statute /2/
constituted a failure and refusal to cooperate in impasse decisions in
violation of section 7116(a)(1) and (6) of the Statute. Both the
General Counsel and the Charging Party request that the Authority order
the Respondent to comply with the Arbitrator's Opinion and Decision.
The General Counsel also argues that because the Arbitrator's Opinion
and Decision resulted from a Panel-directed arbitration proceeding and
nothing contained in the parties' stipulation indicated that timely
exceptions to the award had been filed under section 7122(a) of the
Statute, the award became final and binding within the meaning of
section 7122(b). /3/ The failure to abide by a final and binding
arbitration award was alleged to constitute a violation of section
7116(a)(1) and (6) of the Statute as well. The Respondent objected to
this allegation and filed a motion to strike the argument contained in
the General Counsel's brief on the basis that the allegation was not
contained in the amended charge against the Respondent, was not alleged
in the complaint, and was not referenced in the parties' stipulation of
facts. The General Counsel opposed the motion to strike on the grounds
that the arguments are legal in nature and rely solely on the facts
contained in the stipulation.
IV. Analysis
A. Type of Proceeding
As a preliminary matter, the Authority must decide whether the
Arbitrator's Opinion and Decision in 83 FSIP 46 is a Panel decision
within the meaning of section 7119 of the Statute, as the parties have
characterized it, or whether it is an arbitration award resulting from
Panel-directed interest arbitration. For the reasons which follow, we
find that it is the latter.
As noted above, after receiving the Charging Party's request for
assistance, the Panel referred certain unresolved issues to its
Executive Director for arbitration. Specifically, the arbitrator was
given the authority to first mediate the issues and, failing resolution
on that basis, to dispose of any issues that remained by either issuing
a decision or declining to hear the issues until any threshold
negotiability issues were resolved in an appropriate forum. On the
basis of his authority, the arbitrator issued an Arbitrator's Opinion
and Decision in which he directed the parties to adopt the Charging
Party's proposals relating to the payment of various travel and per diem
expenses. In our view, this decision constituted an arbitration award
rendered in an interest arbitration proceeding to which the parties had
been directed by the Panel. This is evident from both the Panel's
communications to the parties referring the matter to mediation and
arbitration and from the language of the Opinion and Decision itself.
While the parties may have viewed the decision in 83 FSIP 46 as a Panel
decision, we find that the Opinion and Decision was an interest
arbitration award under section 7122 of the Statute and not a "final
action" of the Panel within the meaning of section 7119(c)(5)(C) of the
Statute. /4/
B. Failure to Comply -- Section 7116(a)(1) and (6)
Violation
In United States Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 15 FLRA 151, 154 (1984), aff'd
sub nom. Department of the Air Force v. Federal Labor Relations
Authority, 775 F.2d 727 (6th Cir. 1985), the Authority concluded that a
failure to comply with a final and binding interest arbitration award
which resulted from the Panel's granting of the parties' request to
resolve their dispute through the use of interest arbitration was not
only inconsistent with the requirements of section 7122(b) and therefore
a violation of section 7116(a)(1) and (8) of the Statute, but also
constituted a failure to cooperate with impasse procedures and decisions
in violation of section 7116(a)(1) and (6) of the Statute. In this
case, the Panel directed the parties to interest arbitration to resolve
the impasse that arose in their negotiations and an award was
subsequently issued directing the parties to adopt certain proposals
regarding the payment of travel and per diem expenses. We find that the
Respondent's conceded failure to comply with the award rendered as a
result of this process violated section 7116(a)(1) and (6) of the
Statute because the Respondent failed to cooperate in Panel procedures.
C. Motion to Strike
The Respondent filed a motion to strike the General Counsel's
argument, first articulated in its post-stipulation brief to the
Authority, that the Respondent's failure to comply with a final and
binding arbitration award also constituted a violation of section
7116(a)(1) and (6) of the Statute. As we noted in connection with the
Wright-Patterson case, a failure to comply with an interest arbitration
award which has become final and binding in the absence of timely filed
exceptions is a violation of section 7116(a)(1) and (8) of the Statute.
In the complaint in this case, the General Counsel did not allege a
violation of section 7116(a)(1) and (8) of the Statute based on the
failure to comply with an arbitration award. Therefore, to the extent
that the General Counsel is now attempting to argue a new violation of
the Statute, the motion to strike is granted. On the other hand, to the
extent that the General Counsel is alleging that the failure to comply
with the award constitutes noncompliance with the requirements of
section 7119 of the Statute, we find that such conduct was properly
alleged as a section 7116(a)(1) and (6) violation because it
demonstrates a failure to cooperate with Panel procedures. Therefore,
to this extent, the motion to strike is denied. /5/
V. Remedy
To remedy the unfair labor practice conduct, the Authority will order
the Respondent to comply with the Arbitrator's Opinion and Decision in
83 FSIP 46, and to give it retroactive effect. See Wright-Patterson.
As the arbitrator directed the parties to adopt proposals requiring the
payment of travel and per diem expenses, our order requires that the
Respondent make such payments. In this connection, the stipulated
record indicates that it was the Charging Party that made payments the
Respondent otherwise would have made from its appropriated funds.
Therefore, consistent with the Authority's decision in, for example,
Department of the Treasury, Internal Revenue Service, Columbia District,
Columbia, South Carolina, 22 FLRA No. 28 (1986), petition for review
filed sub nom. Department of the Treasury, Internal Revenue Service,
Columbia District, Columbia, South Carolina v. FLRA, No. 85-1467 (D.C.
Cir. Aug. 22, 1986), we will further order the Respondent to make whole
the Charging Party for the expenses it incurred in paying the travel and
per diem expenses of bargaining unit employees who acted as its
negotiators while engaged in preparation for bargaining as well as
actual negotiations over the master agreement. Additionally, if there
are any bargaining unit employees who either did not receive payments to
which they were entitled or were not compensated fully for such
expenses, the Respondent also will be ordered to reimburse them for the
travel and per diem expenses they incurred upon their submission of
properly documented claims for such payments. The payments that are
here being ordered must be consistent with law and regulation, including
the Federal Travel Regulations.
VI. Conclusion
We find that the Respondent's failure to comply with the Arbitrator's
Opinion and Decision in Case No. 83 FSIP 46 constituted a failure to
cooperate in impasse procedures in violation of section 7116(a)(1) and
(6) of the Statute. Therefore, we shall order the Respondent to comply
with the Opinion and Decision and pay travel and per diem expenses as
outlined above.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
ordered that the Veterans Administration shall:
1. Cease and desist from:
(a) Failing and refusing to cooperate in impasse procedures by
refusing to comply with the Arbitrator's Opinion and Decision in Case
No. 83 FSIP 46.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Comply with the Arbitrator's Opinion and Decision in Case No. 83
FSIP 46.
(b) Make the American Federation of Government Employees, National
Council of VA Locals whole for the costs it incurred in paying the
travel and per diem expenses of bargaining unit employees who acted as
its negotiators while engaged in preparation for bargaining as well as
actual negotiations over the master agreement, for which the employees
otherwise would have been reimbursed by the Respondent.
(c) Pay travel and per diem expenses, consistent with law and
regulation, including the Federal Travel Regulations, to all bargaining
unit employees who submit or previously submitted appropriate claims for
such payments in connection with preparation for bargaining as well as
actual negotiations over the master agreement, to the extent that such
expenses have not been reimbursed by the American Federation of
Government Employees, National Council of VA Locals.
(d) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Administrator and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
ensure that such Notices are not altered, defaced, or covered by any
other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with it.
Issued, Washington, D.C., October 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Other issues were resolved during the mediation phase of the
proceeding and are not at issue in this case.
(2) Section 7119(c) provides that any final action of the Panel
"shall be binding on such parties during the term of the agreement,
unless the parties agree otherwise."
(3) Section 7122(b) of the Statute provides that an arbitration award
shall be final and binding unless exceptions are filed within a
prescribed time period, and that an agency shall take the actions
required by an award that has become final and binding.
(4) See Department of the Air Force, Flight Test Center, Edwards Air
Force Base, California and Interdepartmental Local 3854, American
Federation of Government Employees, AFL-CIO, 21 FLRA No. 61 (1986), in
which the Authority determined, among other things, that an arbitrator's
opinion and decision resulting from Panel-directed interest arbitration
was an arbitration award and not a final action of the Panel under
section 7119 of the Statute. Any argument the Respondent wished to
raise concerning the Panel's jurisdiction in this matter could have been
raised in exceptions to the award filed under section 7122 of the
Statute.
(5) The parties' mischaracterization of the arbitration award may
have resulted from the Panel's and the arbitrator's procedures. The
arbitration award was forwarded to the parties with a cover letter on
Panel letterhead signed by Howard Solomon as "Executive Director." The
first page of the Arbitrator's Opinion and Decision contains the heading
"Before the Federal Service Impasses Panel," and Mr. Solomon signed the
Opinion and Decision as "Executive Director and Arbitrator." Further,
the signature page of the decision contains the phrase "By direction of
the Panel." A clearer explanation of the Panel's procedures might have
avoided the parties' reference to the arbitration award as a Panel
decision.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to cooperate in impasse procedures by
refusing to comply with the Arbitrator's Opinion and Decision in Case
No. 83 FSIP 46.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL comply with the Arbitrator's Opinion and Decision in Case No.
83 FSIP 46.
WE WILL make the American Federation of Government Employees,
National Council of VA Locals whole for the costs it incurred in paying
the travel and per diem expenses of bargaining unit employees who acted
as its negotiators while engaged in preparation for bargaining as well
as actual negotiations over the master agreement, for which the
employees otherwise would have been reimbursed by us.
WE WILL pay travel and per diem expenses, consistent with law and
regulation, including the Federal Travel Regulations, to all bargaining
unit employees who submit or previously submitted appropriate claims for
such payments in connection with preparation for bargaining as well as
actual negotiations over the master agreement, to the extent that such
expenses have not been reimbursed by the American Federation of
Government Employees, National Council of VA Locals.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, Room 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8500.