21:0405(54)AR - GSA, Region 8 and AFGE, Council 236 -- 1986 FLRAdec AR
[ v21 p405 ]
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 management in their sound discretion and expressly directed reimbursement of only reasonable and necessary expenses of the representative. Thus, the Arbitrator clearly directed the payment of travel and per diem expenses only to the extent the expenses are consistent with legal and regulatory requirements and restrictions. Accordingly, the Authority concludes that the Arbitrator's award is consistent with the Travel Expense Act and the FTRs and that the Agency has failed to establish that the award is deficient as alleged in this exception. V. DECISION Based on the foregoing analysis and conclusions, the Agency's exceptions are denied. Issued, Washington, D.C., April 22, 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).