21:0086(17)AR - Colorado River Storage Project, Bureau of Reclamation, Interior and IBEW Local 2159 -- 1986 FLRAdec AR



[ v21 p86 ]
21:0086(17)AR
The decision of the Authority follows:


 21 FLRA No. 17
 
 COLORADO RIVER STORAGE PROJECT, 
 BUREAU OF RECLAMATION, 
 U.S. DEPARTMENT OF THE INTERIOR
 Activity
 
 and
 
 INTERNATIONAL BROTHERHOOD OF 
 ELECTRICAL WORKERS, LOCAL 2159
 Union
 
                                            Case No 0-AR-495
 
                                 DECISION
 
                  I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the interest
 arbitration award of Arbitrator William E. Rentfro filed by the Union
 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 dispute before the Arbitrator concerned, among other things, the
 negotiation impasse of the parties over what modification, if any,
 should be made in the grievance procedures and what procedures should be
 followed by the parties in effecting final approval of agreements
 negotiated at the local level.  Pursuant to the provisions of the
 parties' general agreement approved by the Federal Services Impasses
 Panel, the impasse was referred to interest arbitration for resolution.
 With respect to the grievance procedures, the Arbitrator noted that the
 Union had proposed a change to provide travel and per diem expenses for
 the grievant, witnesses, and representatives while presenting a
 grievance.  In terms of the proposal, the Arbitrator observed that
 traditionally, the risk or cost in processing a grievance has been borne
 by each party.  He concluded that if each party pays its own way in
 pursuing a grievance, the stakes are more equitable and the parties are
 encouraged to settle the grievance at an early stage without resort to
 arbitration.  Accordingly, as his award in this respect, the Arbitrator
 determined not to incorporate this proposal into the collective
 bargaining agreement.
 
    With respect to the approval procedure, the Arbitrator noted that the
 Activity had proposed several amendments and that the Union had objected
 to the proposals because they were not within the mandatory duty to
 bargain and therefore were not properly before the Arbitrator.  The
 Arbitrator agreed with the Union's characterization and concluded that
 the proposed changes were not appropriate amendments to the approval
 procedure as contained in the existing agreement.  Accordingly, as his
 award in this respect, the Arbitrator determined not to change the
 approval procedure of the existing agreement.  However, because of the
 expressed concerns of the Activity, the Arbitrator suggested that a
 clarification of the existing agreement might satisfy those concerns.
 Thus, he suggested a clarification of the existing language and proposed
 for consideration by the parties certain additional language to further
 clarify the intent of the existing agreement.
 
    The Union has filed exceptions to the Arbitrator's resolution of both
 of these impasses.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    In its first exception the Union contends that the Arbitrator's
 resolution of the impasse over grievance procedures by determining not
 to include a provision for travel and per diem is deficient as contrary
 to law and contrary to the evidence.  In support of this exception, the
 Union primarily argues that the refusal to provide for travel and per
 diem is contrary to section 7131(d) of the Statute and ignores the
 evidence showing the hardships on employees of grievances and the
 evidence showing that it is not traditional in the Federal sector for
 each side to pay its own costs.
 
                        B.  Analysis and Conclusion
 
    The Authority finds that the Union fails to establish that the award
 is deficient as alleged.  Contrary to the argument of the Union that the
 refusal to provide for travel and per diem is contrary to section
 7131(d), the Authority stated in National Treasury Employees Union and
 Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986),
 that both the Statute and the legislative history are silent on the
 payment from Federal funds of travel expenses incurred in the conduct of
 labor-management relations activities, which would include in terms of
 this case the processing of grievances.  Id. at 3.  Moreover, the
 Authority noted in Customs Service that the U.S. Supreme Court, in
 Bureau of Alcohol, Tobacco and Firearms, 464 U.S. 89 (1983), had
 rejected the argument that employees on official time were entitled
 under law to travel and per diem expenses.  In reaching its decision on
 remand in the Customs Service case, in the light of the Supreme Court's
 decision in BATF, the Authority concluded that the union's proposal
 seeking payment of travel and per diem expenses incurred by employees on
 official time was within the agency's duty to bargain under the Statute.
  However, the Authority further concluded that while the agency was
 obligated to bargain in good faith over the disputed proposal it was
 under no obligation to agree to the union's formulation.  Customs
 Service, at 8-9.  The Authority therefore finds in this case that the
 Union's position that it was entitled as a matter of law to have its
 proposal for the payment of travel and per diem expenses included in the
 parties' agreement is without merit.  The Authority concludes that the
 Arbitrator's determination not to require that the Union's proposal be
 included in the agreement is not contrary to section 7131(d) of the
 Statute as alleged by the Union.  Similarly, the Union's contention that
 the award is contrary to the evidence is nothing more than disagreement
 with the Arbitrator's evaluation of the evidence and with his reasoning
 and conclusions in reaching his determination not to incorporate the
 Union's proposal into the agreement.  Consequently, this contention
 provides no basis for finding the award deficient.  See, e.g., American
 Federation of Government Employees, Council 236 and General Services
 Administration, National Capital Region, 12 FLRA 236 (1983).
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    In its second exception the Union contends that the Arbitrator's
 resolution of the impasse over the approval procedure is contrary to law
 and contrary to the evidence.
 
                        B.  Analysis and Conclusion
 
    The Authority finds that the Union fails to establish that the award
 is deficient as alleged.  In support of this exception the Union does
 not argue that the Arbitrator's determination not to change the existing
 agreement is deficient or that the approval provision of the existing
 agreement is contrary to law.  Instead, the Union only argues that the
 Arbitrator's suggested clarification of the existing language and his
 proposal of additional language for consideration by the parties, which
 the Union concedes is not mandated to be incorporated into the
 agreement, are deficient.  Consequently, because this exception does not
 address the award, which as noted resolved the impasse in favor of the
 Union by ruling not to change the approval procedure of the existing
 agreement, no basis is provided for finding the award deficient.
 
                               V.  DECISION
 
    Accordingly, the Union's exceptions are denied.
 
    Issued, Washington, D.C., March 20, 1986
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                                 FOOTNOTES
 
    (*) Contrary to the argument of the Agency that section 7122(a) of
 the Statute and part 2425 of the Authority's Rules do not apply to
 interest arbitration awards, the Authority has specifically confirmed
 its jurisdiction to resolve exceptions to interest arbitration awards.
 Department of Housing and Urban Development and American Federation of
 Government Employees, Local 476, AFL-CIO, 18 FLRA No. 95 (1985);  Patent
 and Trademark Office and Patent Office Professional Association, 15 FLRA
 990 (1984).
                  ORDER DENYING REQUEST FOR CLARIFICATION
 
    This matter is before the Authority on a request filed by the
 Department of the Air Force (the Agency) seeking clarification of the
 Authority's decision of June 21, 1985 (18 FLRA No. 81).  In that
 decision, on exceptions filed by the Agency, the Authority set aside the
 Arbitrator's interest arbitration award directing the parties to include
 a provision in their collective bargaining agreement authorizing 100
 percent official time for certain Union representatives.  In its request
 for clarification, the Agency asks whether the Authority set aside the
 Arbitrator's resolution of the parties' entire negotiation impasse that
 was before him or only that portion excepted to by the Agency, i.e., the
 portion dealing with full-time union representatives, and whether all
 other portions of his award remain in effect.
 
    As set forth in the Authority's decision, the entire dispute before
 the Arbitrator concerned an impasse which arose during the parties'
 negotiation of a new Master Labor Agreement.  The Federal Service
 Impasses Panel had directed that the impasse be referred to
 mediation-arbitration for resolution.  Negotiations under the
 Arbitrator's direction apparently produced agreement on all issues
 except a Union proposal that 100 percent official time be authorized for
 certain Union representatives.  Before the Arbitrator, the Agency
 contended, as it had earlier, that the Union's proposal was not within
 the duty to bargain under the Federal Service Labor-Management Relations
 Statute.
 
    In its decision, the Authority concluded that the Agency's allegation
 raised a negotiability issue under section 7117(c)(1) of the Statute and
 that by deciding that the parties' agreement should contain the disputed
 provision, the Arbitrator had determined that the Agency had an
 obligation under the Statute to bargain on the matter, despite its
 allegation to the contrary.  Under established Authority precedent, the
 Arbitrator was without authority to decide such a negotiability issue
 arising under section 7117(c)(1) since, as required by section
 7105(a)(2)(E), such issues may only be resolved by the Authority.
 Accordingly, the Authority set aside the Arbitrator's award deciding the
 negotiability issue as contrary to section 7105(a)(2)(E).
 
    The Authority concludes that the Agency's request for clarification
 must be denied.  Thus, without passing upon whether the Authority's
 Rules and Regulations provide for the filing of such requests, the
 Authority finds that clarification is not warrante