21:0392(51)AR - SSA and AFGE -- 1986 FLRAdec AR
[ v21 p392 ]
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. Army Engineer District, Kansas City, Missouri, 13 FLRA 23, 24 (1983).