21:0405(54)AR - GSA, Region 8 and AFGE, Council 236 -- 1986 FLRAdec AR



[ v21 p405 ]
21:0405(54)AR
The decision of the Authority follows:


 21 FLRA No. 54
 
 GENERAL SERVICES ADMINISTRATION, 
 REGION 8
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, COUNCIL 236
 Union
 
                                            Case No. 0-AR-927
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Robert W. Smedley 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 issue before the Arbitrator was whether the grievant was entitled
 to travel and per diem expenses when she performed certain
 representational activities on official time.  The Arbitrator concluded
 that the parties had negotiated and agreed upon the payment of travel
 and per diem expenses for union representatives engaged in
 representational activities.  In reaching that conclusion, the
 Arbitrator cited and discussed Article 27, Section 10 of the parties'
 collective bargaining agreement, which provided that travel would be
 paid in accordance with the Federal Service Labor-Management Relations
 Statute;  Article 6, wherein the parties had negotiated expense report
 requirements as set forth in Appendix A of the agreement;  and Appendix
 A itself, which included provision for travel and per diem expense
 claims.  As to Appendix A, the Arbitrator found that merely filling out
 the form did not guarantee payment of the expenses, but that a claim for
 such expenses is subject to the exercise of the sound discretion of both
 the union and management.  The Arbitrator determined, however, that
 management cannot simply deny all payments when it definitely made a
 contractual commitment to pay the expenses in proper cases.  As his
 award, the Arbitrator directed that the union representative be
 reimbursed for her reasonable and necessary travel and per diem expenses
 for the representational functions involved, upon submission of the
 information required in Appendix A.
 
                           II.  FIRST EXCEPTION
 
                              A.  Contention
 
    In its first exception, the Agency contends that the Arbitrator's
 award fails to draw its essence from the parties' agreement.  In support
 of this contention, the Agency argues that the Arbitrator did not set
 forth specifically where in the parties' agreement the Agency's
 obligation to pay travel and per diem is contained, other than Appendix
 A.  The Agency further argues that the Arbitrator placed a great deal of
 weight on Appendix A and ignored language in the Appendix that it was
 not to be read as source of rights to official time or travel and per
 diem 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.  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 Employees,
 AFL-CIO, Local 3186, 15 FLRA 211 (1984).
 
                          III.  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 under that provision to pay travel and per diem expenses
 for union representatives on official time.
 
                        B.  Analysis and Conclusion
 
    The Arbitrator in this case found that the Agency had agreed to pay
 the travel and per diem expenses of union representatives performing
 labor-management relations activities.  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 and agreed to pay such expenses.  In
 National Treasury Employees Union and Department of the Treasury, U.S.
 Customs Service, 21 FLRA No. 2 (1986), the Authority found the following
 union proposal to be within the duty to bargain under the Statute:
 
          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.  In this case, the Authority
 concludes that the Arbitrator's award, based upon his interpretation of
 the parties' agreement that the Agency had agreed to pay travel and per
 diem expenses, is not contrary to section 7131 of the Statute as alleged
 by the Agency in its exception.
 
                           IV.  THIRD EXCEPTION
 
                              A.  Contentions
 
    In its third exception, the Agency contends that even assuming that
 the Arbitrator was correct in finding that the Agency had agreed to pay
 the travel and per diem expenses of union representatives on official
 time, any such agreement is void because the subject of travel and per
 diem is outside the duty to bargain under the Statute.  In support of
 its contention, the Agency argues that the duty to bargain only extends
 to matters which are not inconsistent with Federal law and
 Government-wide rules and regulations, and that negotiation of travel
 and per diem is inconsistent with the Travel Expense Act, 5 U.S.C.
 Section 5701 et seq., and Federal Travel Regulations (FTRs), 5 CFR part
 101-7, which govern payment of such expenses.  The Agency further argues
 that the Travel Expense Act requires an evaluation of each individual
 travel situation and a case-by-case determination by an agency as to
 whether an employee's travel is sufficiently within the interest of the
 Government so as to constitute official business warranting payment of
 related expenses and, moreover, that any blanket requirement to pay
 expenses such as the Arbitrator found the Agency had agreed to in this
 case would be contrary to that law.
 
                       B.  Analysis and Conclusions
 
    As indicated above in the analysis and conclusion concerning the
 Agency's second exception, the Authority expressly held in U.S. Customs
 Service that a proposal essentially to the same effect as the
 Arbitrator's interpretation of the parties' agreement here involved was
 within the duty to bargain under the Statute.  Moreover, the Authority
 also expressly found that the proposal was not inconsistent with the
 Travel Expense Act because that Act does not prohibit an agency from
 exercising, through negotiations, its discretion to determine whether
 travel attendant 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 related
 travel expenses.  Id. at 6.  In this case, the Arbitrator determined
 that the Agency agreed to pay the travel and per diem expenses related
 to labor-management relations activities.  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 representational 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 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
 FTRs.  /*/ In this case, the Arbitrator provided that the travel and per
 diem expense claim of the union representative was subject to the review
 of the union and