21:0392(51)AR - SSA and AFGE -- 1986 FLRAdec AR



[ v21 p392 ]
21:0392(51)AR
The decision of the Authority follows:


 21 FLRA No. 51
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-994
 
                                 DECISION
 
                   I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Arthur Eliot Berkeley 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 issues presented to the Arbitrator concerned, among other things,
 whether the Agency violated certain provisions of the parties' national
 agreement when it terminated the payment of travel and per diem expenses
 of employees who served as union negotiators in bargaining sessions.
 The Arbitrator noted that Article 4, section 4 of the agreement provided
 that travel and per diem would be authorized for union negotiators as
 required by the Federal Service Labor-Management Relations Statute.  In
 interpreting this provision, the Arbitrator considered the decision of
 the U.S. Supreme Court in Bureau of Alcohol, Tobacco and Firearms v.
 FLRA, 464 U.S. 89 (1983), and determined that nothing in BATF precluded
 the Agency from agreeing to the payment of the travel and per diem
 expenses of union negotiators.  Thus, he found that the Agency had
 bargained over and agreed to pay travel and per diem and that the Agency
 therefore was bound by its agreement.  Consequently, the Arbitrator
 determined that the Agency violated Article 4, section 4 of the
 agreement and as a remedy ordered the Agency to reimburse union
 negotiators for travel and per diem expenses incurred retroactive to the
 date the Agency ceased making such payments.  The Arbitrator also
 retained jurisdiction over implementation of the award for the limited
 purpose of resolving any reimbursement questions.
 
             III.  FIRST, SECOND, THIRD, AND FOURTH EXCEPTIONS
 
                              A.  Contentions
 
    In its initial exceptions, the Agency contends that the award is
 incomplete;  that the award fails to draw its essence from the
 agreement;  that the award is based on a nonfact;  and that the
 Arbitrator exceeded his authority by retaining jurisdiction during
 implementation of the award.
 
                       B.  Analysis and Conclusions
 
    The Authority concludes that these exceptions fail to establish that
 the award is deficient on any basis as contended by the Agency.  The
 first three exceptions constitute nothing more than disagreement with
 the Arbitrator's interpretation and application of the collective
 bargaining agreement.  The Agency in these exceptions is clearly seeking
 to have its own interpretation of the parties' agreement substituted for
 that of the Arbitrator and the Authority has held that such exceptions
 provide no basis for finding an award deficient.  National Federation of
 Federal Employees, Local 1418 and U.S. International Communication
 Agency, Voice of America, 9 FLRA 980 (1982).  Similarly, the Agency
 fails to establish that the retention of jurisdiction by the Arbitrator
 for the limited purpose of resolving any reimbursement questions in
 implementation of the award is deficient.  See American Federation of
 Government Employees, AFL-CIO, National Immigration and Naturalization
 Service Council and U.S. Immigration and Naturalization Service, 15 FLRA
 355 (1984).  Accordingly, these exceptions must be denied.
 
                           IV.  FINAL EXCEPTION
 
                              A.  Contentions
 
    In its final exception, the Agency contends that the award is
 contrary to applicable law.  The Agency mentions in this regard, section
 7131 of the Statute and applicable travel statutes.
 
                       B.  Analysis and Conclusions
 
    The Authority concludes that this exception fails to establish that
 the award is deficient as alleged by the Agency.  In National Treasury
 Employees Union and Department of the Treasury, U.S. Customs Service, 21
 FLRA No. 2 (1986), the Authority found the following proposal to be
 within the duty to bargain:
 
          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.  The Authority concludes that the
 Arbitrator's interpretation of the parties' agreement in this case to
 find management's termination of the payment of travel and per diem
 expenses constituted a violation of the agreement is not contrary to
 section 7131 of the Statute.
 
    Moreover, the Authority also 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 related 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 the
 travel expenses.  Id. at 6.  The Authority similarly concludes that the
 Arbitrator's award in this case is not contrary to the Travel Expense
 Act.  The Arbitrator ruled that the Agency agreed in the collective
 bargaining agreement to pay the travel and per diem expenses of
 employees serving as union negotiators.  The Authority finds that the
 Arbitrator's interpretation of the agreement effectively constitutes, in
 terms of U.S. Customs Service, a determination under the agreement that
 the representational activities involved were sufficiently within the
 interest of the United States so as to constitute official business.
 
    However, 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.  /*/ In this case, the Arbitrator, in directing the
 reimbursement of union negotiators for travel and per diem expenses
 retroactive to the date the Agency ceased making such payments, has not
 expressly provided for agency determinations regarding the propriety
 under the FTRs of those expenses.  Consequently, the Authority must
 modify the award to assure that it is consistent with the requirements
 of the FTRs.
 
                               V.  DECISION
 
    Accordingly, pursuant to section 2425.4 of the Authority's Rules and
 Regulations and for the reasons stated above, the Agency's first four
 exceptions are denied and that portion of the award directing the
 reimbursement of travel and per diem expenses is modified to provide as
 follows:
 
          Due to the violation of the National Agreement found above, the
       Agency shall reimburse, insofar as consistent with applicable
       requirements of the Federal Travel Regulations, union negotiators
       for travel and per diem expenses retroactive to the date the
       Agency ceased making such payments and shall pay same pursuant to
       the agreed upon contract language.
 
    Issued, Washington, D.C. April 21, 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. Ar