21:0125(24)AR - GSA and AFGE, Council 236 -- 1986 FLRAdec AR
[ v21 p125 ]
The decision of the Authority follows:
21 FLRA No. 24 GENERAL SERVICES ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL 236 Union Case No. 0-AR-727 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator Thomas Angelo 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 substantive issue submitted to arbitration was whether the Agency violated section 7131(d) of the Statute and Article 27, Section 10 of the parties' negotiated agreement by failing to pay the travel and per diem expenses of the Union's Regional Vice President when he performed certain representational activities on official time. Article 27, Section 10 provided that travel would be paid in accordance with the Federal Service Labor-Management Relations Statute. The Arbitrator found that the parties had agreed in that provision that union representatives engaged in the activities set forth elsewhere in the parties' agreement (Article 6, which pertained to official time) were entitled to reimbursement for related travel and per diem expenses. In his award, the Arbitrator determined that the Agency was obligated under Article 27, Section 10 of the parties' agreement to pay the individual representative in this case reasonable and necessary travel and per diem expenses in connection with the representational activities involved. As a remedy, the Arbitrator directed the Agency to reimburse the representative "in the same manner and to the same extent it would otherwise reimburse employees engaged in official Agency travel, upon presentation of appropriate documentation with respect to his expenses." III. FIRST EXCEPTION A. Contention In its first exception, the Agency contends that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement. In support of this contention, the Agency argues that it did not agree to pay travel and per diem expenses for union representatives on official time, but merely agreed to abide by any obligation it might have under the Federal Service Labor- Management Relations Statute to pay such 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 in INS, Southern Region. 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 Employee Employees, AFL-CIO, Local 3186, 15 FLRA 211 (1984). IV. 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 to pay travel and per diem expenses for union representatives on official time under that provision. B. Analysis and Conclusion As indicated above, the Arbitrator in this case interpreted Article 27, Section 10 of the parties' agreement as requiring the Agency to pay the travel and per diem expenses of union representatives performing covered labor-management relations activities on official time. 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 an agreement provision requiring it to pay such expenses. Further in that regard, the provision involved, Article 27, Section 10, is essentially to the same effect 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. relations activities covered by the official time provision of the parties' agreement. 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 covered 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 disputed 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 expressly provided for the Agency to reimburse the employee representative here involved "in the same manner and to the same extent it would otherwise reimburse employees engaged in official Agency travel, upon presentation of appropriate documentation with respect to his expenses." Thus, the Arbitrator effectively directed the payment of travel and per diem expenses only to the extent the expenses are consistent with the FTRs. Accordingly, the Authority concludes that the Agency has failed to establish that the Arbitrator's award is deficient as alleged in this exception. VI. DECISION Based on the foregoing analysis and conclusions, the Agency's exceptions are denied. Jerry L. Calhoun, Chairman Henry B. Frazier, 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).