21:0421(58)AR - Bureau of Reclamation, Upper Colorado Region, Colorado River Storage Project, Power Operations Office, DOI and IBEW, Local Union 2159 -- 1986 FLRAdec AR



[ v21 p421 ]
21:0421(58)AR
The decision of the Authority follows:


 21 FLRA No. 58
 
 BUREAU OF RECLAMATION, UPPER COLORADO 
 REGION, COLORADO RIVER STORAGE PROJECT, 
 POWER OPERATIONS OFFICE, U.S. DEPARTMENT 
 OF THE INTERIOR
 Activity
 
 and
 
 INTERNATIONAL BROTHERHOOD OF ELECTRICAL 
 WORKERS, AFL-CIO, LOCAL UNION 2159
 Union
 
                                            Case No. 0-AR-1055
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Leo Weiss 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 parties submitted to arbitration the stipulated issue of whether
 the Union's claim for travel and per diem expenses for union negotiators
 was an arbitrable matter and, if so, whether Article I, Section 1.8,
 paragraph 2 of the Basic Agreement is null and void or unenforceable.
 That provision in part provided that "(e)mployees authorized to
 represent the Union shall be granted official time, travel and per diem
 for negotiations . . . and related activities." According to the
 stipulated facts, the Basic Agreement was approved by the Agency
 contingent upon the understanding that travel and per diem payments
 under Article I, Section 1.8 meet certification requirements that the
 travel is in the primary interest of the Government and in accordance
 with rulings of the Comptroller General.  Upon issuance of the Supreme
 Court's decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464
 U.S. 89 (1983), and relying on Office of Personnel Management (OPM)
 guidance contained in Federal Personnel Manual Letter 711-162, the
 Agency declared the language of Article I, Section 1.8 relating to
 payment of travel and per diem expenses to be null and void.  Following
 this action, the Activity denied the claims of three employees for their
 travel and per diem expenses in connection with negotiations.  The
 employees filed the grievances which are the subject of this
 arbitration.
 
    The Arbitrator held that the grievances were arbitrable disputes over
 the interpretation and application of Section 1.8 of the Agreement.  On
 the substantive issue, the Arbitrator rejected the Activity's
 interpretation of the Supreme Court's decision in Bureau of Alcohol,
 Tobacco and Firearms (BATF), and found that nothing in that decision
 prohibited agencies and unions from entering into an agreement to
 reimburse employee union negotiators for travel and per diem expenses.
 He also found that the guidance provided in FPM Letter 711-162 did not
 apply to prevent payment of travel and per diem in this case.
 Consequently, he ruled that Section 1.8 of the Basic Agreement was not
 null and void but an enforceable provision which the Activity had
 violated by refusing to pay the grievants for travel and per diem
 expenses related to attendance at negotiating meetings.  He sustained
 the grievances and directed the Activity to make the grievants whole for
 any losses they may have suffered.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    In its first exception, the Agency contends that the Arbitrator erred
 by finding that Section 1.8 was "negotiated" into the Basic Agreement,
 and further argues that the contract language was not the product of
 bargaining but merely incorporated the existing statutory entitlement.
 
                       B.  Analysis and Conclusions
 
    The Authority finds that the Agency in this exception has in no
 manner shown how the Arbitrator's award, based upon his interpretation
 of the parties' agreement, is deficient.  Instead, the exception
 constitutes nothing more than disagreement with the Arbitrator's
 interpretation of the parties' 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).  Accordingly, this exception must be
 denied.
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    In its second exception, the Agency contends that the Arbitrator
 failed to recognize that the Agency had constructively disapproved
 Section 1.8 as written, by making its approval contingent upon the
 understanding that any travel and per diem payments made pursuant to the
 provision must meet the certification requirements that travel is in the
 primary interest of the Government and in accordance with rulings of the
 Comptroller General.  Consequently, the Agency maintains that the
 Arbitrator improperly resolved an issue relating to the duty to bargain.
 
                       B.  Analysis and Conclusions
 
    As to this exception, the Authority finds that contrary to the
 Agency's assertions, the issue decided by the Arbitrator in this case
 does not relate to the negotiability of a Union proposal or otherwise
 relate to the duty to bargain under the Statute.  In this regard, the
 Agency's reliance on Federal Correctional Institution, Texarkana, Texas,
 Federal Prison System and American Federation of Government Employees,
 Local 2429, Texarkana, Texas, 19 FLRA No. 26 (1985) is misplaced.  The
 dispute in that case specifically involved management's refusal to
 approve certain provisions in a supplemental agreement on the ground
 that they interfered with management's rights under section 7106(a) of
 the Statute.  The Authority held that the award in that case was
 deficient because the arbitrator, by deciding that the agency had an
 obligation to bargain over the disputed provisions, had necessarily
 decided a negotiability dispute, and such disputes can only be resolved
 by the Authority.  In this case, however, the Arbitrator was asked to
 interpret a provision embodied in a negotiated agreement which had been
 approved by the agency head.  The Authority therefore concludes that
 this exception constitutes nothing more than disagreement with the
 Arbitrator's interpretation and application of the parties' collective
 bargaining agreement and provides no basis for finding the award
 deficient.  Id.; National Federation of Federal Employees, Local 1418
 and U.S. International Communication Agency, Voice of America, 9 FLRA
 980 (1982).  Accordingly, this exception must be denied.
 
                  V.  THIRD, FOURTH AND FIFTH EXCEPTIONS
 
    In its third exception, the Agency alleges that the award is
 deficient because the Arbitrator erred in his interpretation and
 application of the Supreme Court's decision in BATF to the facts of this
 case.  The Agency contends that the Arbitrator in making his award
 overlooked the essential requirement that before travel and per diem
 expenses can be approved an agency must make a determination that the
 travel serves the convenience of the agency or is in the primary
 interest of the Government.  The Agency further contends that such a
 determination must be made on a case-by-case basis and, therefore, the
 provision in Section 1.8 of the agreement establishing a blanket policy
 of paying travel and per diem expenses is unenforceable.
 
    Similarly, in its fourth and fifth exceptions, the Agency alleges
 again in essence that the Arbitrator erred in his interpretation of the
 BATF decision by failing to enforce the requirement that payment of
 travel and per diem expenses must be certified to be in the interest of
 the Government.  The Agency maintains that Article I, Section 1.8 is
 unenforceable and therefore the Union's claim is not grievable or
 arbitrable and, further, the Arbitrator's award requires the performance
 of an illegal act, i.e., payment of travel and per diem without the
 required certification.
 
                        B.  Analysis and Conclusion
 
    In its decision in BATF, the Supreme Court held that there was no
 entitlement to travel and per diem expenses under section 7131(a) of the
 Statute, but the decision did not pertain to circumstances where, as
 here, an agency was found to have negotiated an agreement provision
 requiring it to pay such expenses.  In this regard, Article I, Section
 1.8 of the parties' agreement in this case which the Arbitrator found to
 be binding on the Agency is essentially the same 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.
 
    In that decision, which was rendered in light of the Supreme Court's
 decision in BATF, 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.
 
    Moreover, the Authority 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 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 the labor-management relations activities covered by
 the official time provision of the parties' agreement.  The Authority
 finds that the Arbitrator's determination effectively constitutes, in
 terms U.S. Customs Service, a finding that the Agency had exercised its
 discretion under the Travel Expense Act through negotiations and had
 thereby determined that the covered activities were sufficiently within
 the interest of the United States so as to constitute official business.
  Therefore, the Agency's third, fourth and fifth exceptions also fail to
 establish that the award is deficient as alleged.  Accordingly, these
 exceptions must also be denied.
 
    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
 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 did not provide for the Agency to determine the
 propriety of particular travel and per diem expenses under the FTRs.
 Consequently, the Authority must modify the award to assure that it is
 consistent with the requirements of the FTRs.
 
                               VI.  DECISION
 
    Accordingly, pursuant to section 2425.4 of the Authority's Rules and
 Regulations and for the reasons stated above, the Agency's exceptions
 are denied but that portion of the award directing payment of travel and
 per diem expenses is modified to provide as follows:  /2/
 
          The Employer is hereby directed to make the Grievants whole for
       any losses they may have suffered as a result of its breach of
       Article 1, Section 1.8 of the Basic Agreement, insofar as
       consistent with applicable requirements of the Federal Travel
       Regulations.
 
    Issued, Washington, D.C., April 22, 1986.
 
 
                                       /s/