23:0661(87)CA - VA and AFGE, National Council of VA Locals -- 1986 FLRAdec CA



[ v23 p661 ]
23:0661(87)CA
The decision of the Authority follows:


 23 FLRA No. 87
 
 VETERANS ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, NATIONAL COUNCIL OF VA 
 LOCALS
 Charging Party
 
                                            Case No. 3-CA-30727
 
                            DECISION AND ORDER
 
    I.  Statement of the Case
 
    This unfair labor practice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based upon a stipulation entered into by the Respondent,
 the Charging Party and the General Counsel.  The case involves an
 alleged violation of section 7116(a)(1) and (6) of the Federal Service
 Labor-Management Relations Statute (the Statute) when the Respondent
 notified the Charging Party and the Federal Service Impasses Panel (the
 Panel) that it would not comply with the Arbitrator's Opinion and
 Decision in Veterans Administration, Washington, D.C. and National
 Council of VA Locals, AFGE, 83 FSIP 46, concerning the payment of travel
 and per diem expenses.
 
                              II.  Background
 
    During ground rules negotiations for the parties' first master
 collective bargaining agreement, the Charging Party requested the
 assistance of the Panel in resolving an impasse, principally on the
 matter of payment for travel and per diem expenses.  There was some
 disagreement among the parties as to whether the matter was properly
 before the Panel.  The Respondent argued that the Charging Party's
 proposals regarding travel and per diem expenses were not negotiable
 and, also, that the issue should be resolved by the Authority, not the
 Panel.  The parties were subsequently able to complete negotiations on
 the ground rules except for the matter of travel and per diem expenses.
 Thereafter, the Panel referred these issues to its Executive Director
 for arbitration.  The Executive Director was given "the authority to
 mediate . . . (and to) dispose of (any remaining unresolved issues) by
 (1) issuing a decision resolving some or all of the issues and (2)
 declining to hear some or all of the issues until such time as any
 threshold negotiability issues are resolved in an appropriate forum." On
 July 15, 1983, the Executive Director issued his "Arbitrator's Opinion
 and Decision" in which he ordered the Respondent to adopt the Charging
 Party's proposals providing for reimbursement of travel and per diem
 expenses to employees engaged in preparation for bargaining as well as
 actual negotiations.  /1/ Following receipt of the Arbitrator's Opinion
 and Decision, the Respondent informed the Panel and the Charging Party
 that it would not comply with the decision.  The Respondent also
 petitioned the Panel to withdraw the Opinion and Decision following
 issuance of the United States Supreme Court's decision in Bureau of
 Alcohol, Tobacco and Firearms (BATF) v. Federal Labor Relations
 Authority, 464 U.S. 89 (1983), which the Panel declined to do.  A
 petition for reconsideration filed by the Respondent was similarly
 denied by the Panel.  During the ensuing negotiations between the
 parties for their master agreement, the parties stipulated that the
 Charging Party paid approximately $50,000 for travel and per diem
 expenses to its union/employee negotiators, which payment otherwise
 would have come from the Respondent's appropriated funds.
 
                      III.  Positions of the Parties
 
    The Respondent moves for dismissal of the unfair labor practice
 allegation on the basis that the issues raised involve negotiability
 questions over which the Panel does not have jurisdiction.  It argues
 that both the Authority and the Panel recognized that a legitimate
 negotiability question was involved because of actions taken in other,
 unrelated proceedings involving the negotiability of travel and per diem
 payments.  The Respondent also raises certain arguments regarding the
 cost of travel and per diem payments -- specifically, that such payments
 are inconsistent with the agency's statutory right to determine its
 budget and that there is no statutory authorization for such
 expenditures.
 
    The Charging Party argues generally that payment of travel and per
 diem expenses is a negotiable condition of employment, that the Panel
 properly asserted jurisdiction over the impasse, and consequently that
 the failure to comply with the Arbitrator's Opinion and Decision
 violated the Statute.
 
    The General Counsel argues that the failure and refusal to comply
 with the express provisions of section 7119(c) of the Statute /2/
 constituted a failure and refusal to cooperate in impasse decisions in
 violation of section 7116(a)(1) and (6) of the Statute.  Both the
 General Counsel and the Charging Party request that the Authority order
 the Respondent to comply with the Arbitrator's Opinion and Decision.
 
    The General Counsel also argues that because the Arbitrator's Opinion
 and Decision resulted from a Panel-directed arbitration proceeding and
 nothing contained in the parties' stipulation indicated that timely
 exceptions to the award had been filed under section 7122(a) of the
 Statute, the award became final and binding within the meaning of
 section 7122(b).  /3/ The failure to abide by a final and binding
 arbitration award was alleged to constitute a violation of section
 7116(a)(1) and (6) of the Statute as well.  The Respondent objected to
 this allegation and filed a motion to strike the argument contained in
 the General Counsel's brief on the basis that the allegation was not
 contained in the amended charge against the Respondent, was not alleged
 in the complaint, and was not referenced in the parties' stipulation of
 facts.  The General Counsel opposed the motion to strike on the grounds
 that the arguments are legal in nature and rely solely on the facts
 contained in the stipulation.
 
                               IV.  Analysis
 
                          A.  Type of Proceeding
 
    As a preliminary matter, the Authority must decide whether the
 Arbitrator's Opinion and Decision in 83 FSIP 46 is a Panel decision
 within the meaning of section 7119 of the Statute, as the parties have
 characterized it, or whether it is an arbitration award resulting from
 Panel-directed interest arbitration.  For the reasons which follow, we
 find that it is the latter.
 
    As noted above, after receiving the Charging Party's request for
 assistance, the Panel referred certain unresolved issues to its
 Executive Director for arbitration.  Specifically, the arbitrator was
 given the authority to first mediate the issues and, failing resolution
 on that basis, to dispose of any issues that remained by either issuing
 a decision or declining to hear the issues until any threshold
 negotiability issues were resolved in an appropriate forum.  On the
 basis of his authority, the arbitrator issued an Arbitrator's Opinion
 and Decision in which he directed the parties to adopt the Charging
 Party's proposals relating to the payment of various travel and per diem
 expenses.  In our view, this decision constituted an arbitration award
 rendered in an interest arbitration proceeding to which the parties had
 been directed by the Panel.  This is evident from both the Panel's
 communications to the parties referring the matter to mediation and
 arbitration and from the language of the Opinion and Decision itself.
 While the parties may have viewed the decision in 83 FSIP 46 as a Panel
 decision, we find that the Opinion and Decision was an interest
 arbitration award under section 7122 of the Statute and not a "final
 action" of the Panel within the meaning of section 7119(c)(5)(C) of the
 Statute.  /4/
 
            B.  Failure to Comply -- Section 7116(a)(1) and (6)
 
                Violation
 
    In United States Air Force, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 15 FLRA 151, 154 (1984), aff'd
 sub nom. Department of the Air Force v. Federal Labor Relations
 Authority, 775 F.2d 727 (6th Cir. 1985), the Authority concluded that a
 failure to comply with a final and binding interest arbitration award
 which resulted from the Panel's granting of the parties' request to
 resolve their dispute through the use of interest arbitration was not
 only inconsistent with the requirements of section 7122(b) and therefore
 a violation of section 7116(a)(1) and (8) of the Statute, but also
 constituted a failure to cooperate with impasse procedures and decisions
 in violation of section 7116(a)(1) and (6) of the Statute.  In this
 case, the Panel directed the parties to interest arbitration to resolve
 the impasse that arose in their negotiations and an award was
 subsequently issued directing the parties to adopt certain proposals
 regarding the payment of travel and per diem expenses.  We find that the
 Respondent's conceded failure to comply with the award rendered as a
 result of this process violated section 7116(a)(1) and (6) of the
 Statute because the Respondent failed to cooperate in Panel procedures.
 
                           C.  Motion to Strike
 
    The Respondent filed a motion to strike the General Counsel's
 argument, first articulated in its post-stipulation brief to the
 Authority, that the Respondent's failure to comply with a final and
 binding arbitration award also constituted a violation of section
 7116(a)(1) and (6) of the Statute.  As we noted in connection with the
 Wright-Patterson case, a failure to comply with an interest arbitration
 award which has become final and binding in the absence of timely filed
 exceptions is a violation of section 7116(a)(1) and (8) of the Statute.
 In the complaint in this case, the General Counsel did not allege a
 violation of section 7116(a)(1) and (8) of the Statute based on the
 failure to comply with an arbitration award.  Therefore, to the extent
 that the General Counsel is now attempting to argue a new violation of
 the Statute, the motion to strike is granted.  On the other hand, to the
 extent that the General Counsel is alleging that the failure to comply
 with the award constitutes noncompliance with the requirements of
 section 7119 of the Statute, we find that such conduct was properly
 alleged as a section 7116(a)(1) and (6) violation because it
 demonstrates a failure to cooperate with Panel procedures.  Therefore,
 to this extent, the motion to strike is denied.  /5/
 
                                V.  Remedy
 
    To remedy the unfair labor practice conduct, the Authority will order
 the Respondent to comply with the Arbitrator's Opinion and Decision in
 83 FSIP 46, and to give it retroactive effect.  See Wright-Patterson.
 As the arbitrator directed the parties to adopt proposals requiring the
 payment of travel and per diem expenses, our order requires that the
 Respondent make such payments.  In this connection, the stipulated
 record indicates that it was the Charging Party that made payments the
 Respondent otherwise would have made from its appropriated funds.
 Therefore, consistent with the Authority's decision in, for example,
 Department of the Treasury, Internal Revenue Service, Columbia District,
 Columbia, South Carolina, 22 FLRA No. 28 (1986), petition for review
 filed sub nom. Department of the Treasury, Internal Revenue Service,
 Columbia District, Columbia, South Carolina v. FLRA, No. 85-1467 (D.C.
 Cir. Aug. 22, 1986), we will further order the Respondent to make whole
 the Charging Party for the expenses it incurred in paying the travel and
 per diem expenses of bargaining unit employees who acted as its
 negotiators while engaged in preparation for bargaining as well as
 actual negotiations over the master agreement.  Additionally, if there
 are any bargaining unit employees who either did not receive payments to
 which they were entitled or were not compensated fully for such
 expenses, the Respondent also will be ordered to reimburse them for the
 travel and per diem expenses they incurred upon their submission of
 properly documented claims for such payments.  The payments that are
 here being ordered must be consistent with law and regulation, including
 the Federal Travel Regulations.
 
                              VI.  Conclusion
 
    We find that the Respondent's failure to comply with the Arbitrator's
 Opinion and Decision in Case No. 83 FSIP 46 constituted a failure to
 cooperate in impasse procedures in violation of section 7116(a)(1) and
 (6) of the Statute.  Therefore, we shall order the Respondent to comply
 with the Opinion and Decision and pay travel and per diem expenses as
 outlined above.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 ordered that the Veterans Administration shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to cooperate in impasse procedures by
 refusing to comply with the Arbitrator's Opinion and Decision in Case
 No. 83 FSIP 46.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Comply with the Arbitrator's Opinion and Decision in Case No. 83
 FSIP 46.
 
    (b) Make the American Federation of Government Employees, National
 Council of VA Locals whole for the costs it incurred in paying the
 travel and per diem expenses of bargaining unit employees who acted as
 its negotiators while engaged in preparation for bargaining as well as
 actual negotiations over the master agreement, for which the employees
 otherwise would have been reimbursed by the Respondent.
 
    (c) Pay travel and per diem expenses, consistent with law and
 regulation, including the Federal Travel Regulations, to all bargaining
 unit employees who submit or previously submitted appropriate claims for
 such payments in connection with preparation for bargaining as well as
 actual negotiations over the master agreement, to the extent that such
 expenses have not been reimbursed by the American Federation of
 Government Employees, National Council of VA Locals.
 
    (d) Post at its facilities copies of the attached Notice on forms to
 be furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the Administrator and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (e) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with it.
 
    Issued, Washington, D.C., October 22, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Other issues were resolved during the mediation phase of the
 proceeding and are not at issue in this case.
 
    (2) Section 7119(c) provides that any final action of the Panel
 "shall be binding on such parties during the term of the agreement,
 unless the parties agree otherwise."
 
    (3) Section 7122(b) of the Statute provides that an arbitration award
 shall be final and binding unless exceptions are filed within a
 prescribed time period, and that an agency shall take the actions
 required by an award that has become final and binding.
 
    (4) See Department of the Air Force, Flight Test Center, Edwards Air
 Force Base, California and Interdepartmental Local 3854, American
 Federation of Government Employees, AFL-CIO, 21 FLRA No. 61 (1986), in
 which the Authority determined, among other things, that an arbitrator's
 opinion and decision resulting from Panel-directed interest arbitration
 was an arbitration award and not a final action of the Panel under
 section 7119 of the Statute.  Any argument the Respondent wished to
 raise concerning the Panel's jurisdiction in this matter could have been
 raised in exceptions to the award filed under section 7122 of the
 Statute.
 
    (5) The parties' mischaracterization of the arbitration award may
 have resulted from the Panel's and the arbitrator's procedures.  The
 arbitration award was forwarded to the parties with a cover letter on
 Panel letterhead signed by Howard Solomon as "Executive Director." The
 first page of the Arbitrator's Opinion and Decision contains the heading
 "Before the Federal Service Impasses Panel," and Mr. Solomon signed the
 Opinion and Decision as "Executive Director and Arbitrator." Further,
 the signature page of the decision contains the phrase "By direction of
 the Panel." A clearer explanation of the Panel's procedures might have
 avoided the parties' reference to the arbitration award as a Panel
 decision.
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to cooperate in impasse procedures by
 refusing to comply with the Arbitrator's Opinion and Decision in Case
 No. 83 FSIP 46.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL comply with the Arbitrator's Opinion and Decision in Case No.
 83 FSIP 46.
 
    WE WILL make the American Federation of Government Employees,
 National Council of VA Locals whole for the costs it incurred in paying
 the travel and per diem expenses of bargaining unit employees who acted
 as its negotiators while engaged in preparation for bargaining as well
 as actual negotiations over the master agreement, for which the
 employees otherwise would have been reimbursed by us.
 
    WE WILL pay travel and per diem expenses, consistent with law and
 regulation, including the Federal Travel Regulations, to all bargaining
 unit employees who submit or previously submitted appropriate claims for
 such payments in connection with preparation for bargaining as well as
 actual negotiations over the master agreement, to the extent that such
 expenses have not been reimbursed by the American Federation of
 Government Employees, National Council of VA Locals.
                                       (Activity)
 
    Da