28:0596(76)CA - DOI, Bureau of Reclamation, Upper Colorado River Storage Project, Salt Lake City, UT and IBEW Local 2159 -- 1987 FLRAdec CA



[ v28 p596 ]
28:0596(76)CA
The decision of the Authority follows:


28 FLRA No. 76

DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
UPPER COLORADO RIVER STORAGE
PROJECT, SALT LAKE CITY, UTAH

                   Respondent

      and

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO
LOCAL 2159

                   Charging Party

Case No. 7-CA-60552

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, granting the General Counsel's motion for summary judgment and recommending that the Respondent be ordered to take appropriate remedial action. The Respondent filed exceptions to the Judge's decision. The General Counsel and the Charging Party filed oppositions to the Respondent's exceptions. 1

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have reviewed the rulings of the Judge and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's decision, the [PAGE] exceptions, oppositions and the entire record, we adopt the Judge's findings, conclusions and recommended order. The recommended order has been modified for purposes of clarifying the Respondent's obligations.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Department of the Interior, Bureau of Reclamation, Upper Colorado River Storage Project, Salt Lake City, Utah, shall:

1. Cease and desist from:

(a) Failing to comply with section 7122(b) of the Statute by failing and refusing to implement the award of Arbitrator Leo Weiss, dated October 7, 1985, as modified by the Authority in Bureau of Reclamation, Upper Colorado Region, Colorado River Storage Project, Power Operations Office, U.S. Department of the Interior and International Brotherhood of Electrical Workers, AFL - CIO, Local Union 2159, 21 FLRA No. 58 (1986), in which it was directed to make the grievants in the matter whole, consistent with applicable requirements of the Federal Travel Regulations, for any losses they may have suffered as a result of its violation of a collective bargaining agreement with the Union.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the 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 fully with the award of Arbitrator Weiss, dated October 7, 1985, as subsequently modified by the Authority, by paying the claims of the grievants, Henry Dhieux, Frank Culp and Lanis Reynolds, for necessary travel and per diem expenses incurred in connection with their attendance at negotiation meetings as Union representatives, which claims were denied in violation of the collective bargaining agreement with the Union and which were not established to be inconsistent with applicable requirements of the Federal Travel Regulations.

(b) Post at its facilities where bargaining unit employees represented by the International Brotherhood of [ v28 p2 ] Electrical Workers, AFL - CIO, Local 2159 are located, 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 Regional Director of the Bureau of Reclamation and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

Issued, Washington, D.C., August 17, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p3 ]

                   NOTICE TO ALL EMPLOYEES
     AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
            AND TO EFFECTUATE THE POLICIES OF THE
      FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail to comply with section 7122 (b) of the Statute by failing and refusing to implement the award of Arbitrator Leo Weiss, dated October 7, 1985, as modified by the Authority in Bureau of Reclamation, Upper Colorado Region, Colorado River Storage Project, Power Operations Office, U.S. Department of the Interior and International Brotherhood of Electrical Workers, AFL - CIO, Local Union 2159, 21 FLRA No. 58 (1986), in which we were directed to make the grievants whole, consistent with applicable requirements of the Federal Travel Regulations, for any losses they may have suffered as a result of our violation of our collective bargaining agreement with the Union.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL comply fully with the award of Arbitrator Weiss dated October 7, 1985, as subsequently modified by the Authority, by paying the claims of the grievants, Henry Dhieux, Frank Culp and Lanis Reynolds, for necessary travel and per diem expenses incurred in connection with their attendance at negotiation meetings as Union representatives, which claims we denied in violation of our collective bargaining agreement with the Union and which we have failed to establish are inconsistent with applicable requirements of the Federal Travel Regulations.

                             ______________________________
                                      (Activity)

Dated: ________________  By: ______________________________
                                 (Signature)   (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. [PAGE]

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VII, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224. [ v28 p2 ]

DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION, UPPER
COLORADO RIVER STORAGE PROJECT
SALT LAKE CITY, UTAH

              Respondent

    and

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
LOCAL 2159

              Charging Party

Case No.:  7-CA-60552

Beatrice G. Chester, Esquire
              For the Respondent

Hornbein, MacDonald and Fattor, P.C.
    By: Donald P. MacDonald, Esquire
         Susan J. Tyburski, Esquire
              For the Charging Party

Hazel E. Hanley, Esquire
              For the General Counsel

Before:  WILLIAM B. DEVANEY
         Administrative Law Judge

DECISION

Statement of the Case

This matter, under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., 2 and the Final Rules and [PAGE] Regulations issued thereunder, 5 C.F.R. 2423.1, et seq., concerns the alleged refusal of Respondent to comply with an arbitration award, as amended by the Authority, with which Respondent alleges it has fully complied, and is before me on the cross motions of the parties for summary judgment. For reasons more fully set forth hereinafter, General Counsel' motion for summary judgment is granted and Respondent's motion for summary judgment is denied.

This case was initiated by a charge filed on July 21, 1986 (G.C. Exh. 1(a)) which alleged violations of 16(a) (1), (5), (7) and (8) of the Statute; and a First Amended Charge, filed on September 29, 1986 (G.C. Exh. 1(b)), which alleged violation of 16(a)(1) and (8) of the Statute. The Complaint and Notice of Hearing issued on September 30, 1986 (G.C. Exh. 1(c)), alleged violations of 16(a)(1) and (8) of the Statute and set the hearing for December 11, 1986. On November 21, 1986, General Counsel filed with the Regional Director of Region VII a Motion For Summary Judgment. The Regional Director of Region VII, by Order dated November 21, 1986, pursuant to 2423.22(b)(1), transferred General Counsel's motion for summary judgment to this Office for disposition. The Regional Director's Order was received by this Office on November 24, 1986, and was duly assigned to the undersigned. On November 25, 1986, Respondent filed a motion For Extension Of Time To Respond To General Counsel's Motion For Summary Judgment, and on November 25, 1986, the undersigned issued an Order continuing the hearing, set for December 11, 1986, indefinitely; granting Respondent until December 15, 1986, time to show cause why General Counsel's motion for summary judgment should not be granted; and granting General Counsel and the Charging Party leave to file on, or before, January 5, 1987, a response to any timely reply by Respondent. On December 15, 1986, Respondent timely filed a Response To General Counsel's Motion For Summary Judgment and its Cross - Motion For Summary Judgment (hereinafter referred to as "Pes. Response and Motion"). On January 2, 1987, General Counsel timely mailed an Opposition To Cross - Motion For Summary Judgment, received on January 6, 1987, and on January 5, 1987, Charging Party timely mailed its Reply To The Agency's Response and Cross - Motion For Summary Judgment, received on January 9, 1987.

UNDISPUTED FACTS

1. The international Brotherhood of Electrical Workers, AFL - CIO, Local 2159 (hereinafter referred to as the "Union") is the exclusive representative of Respondent's employees [ v28 p2 ] and at all times material, Respondent and the union have been parties to a collective bargaining agreement (G.C. Exh. 2).

2. On October 7, 1985, Arbitrator Leo Weiss issued an Opinion and Award in Bureau of Reclamation, Upper Colorado Region, Colorado River Storage Project, Power Operations Office, United States Department of the Interior (G.C. Exh. 3; copy also attached to Res. Response an Motion), which involved the grievances of Henry Dhieux, Frank Culp and Lanis Reynolds, employees who sought payment of travel and per diem expenses to participate in negotiation meetings as Union representatives which Respondent had denied. The Arbitration Award provided, in material part, as follows:

"3 - 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." (G.C. Exh. 3, p. 21).

3. On November 8, 1985, Respondent filed with the Authority Exceptions to the Arbitration Award (G.C. Exh. 4) and a Request for Stay (G.C. Exh. 5).

4. On January 14, 1986, the Authority granted Respondent's request for a stay (G.C. Exh. 7).

5. On April 22, 1986, the Authority issued its decision, 21 FLRA No. 58, 21 FLRA 421, denying Respondent's exceptions but modifying the Award to provide as follows:

"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." (Underscoring supplied to indicate the language added to the relevant portion of the Arbitrator's Award by the Authority's modification).

6. Respondent admits that it had not paid travel and per diem to the Grievants. (Res. Response and Motion, p. 2).

Discussion and Conclusions

There are no material facts in dispute and, accordingly, disposition by summary judgment is appropriate as all parties [ v28 p3 ] agree, notwithstanding that the conclusion urged by Respondent is diametrically opposed to the conclusion urged by General Counsel and the Union.

The language of the Authority modifying the Award, "insofar as consistent with applicable requirements of the Federal Travel Regulations" did not qualify or limit compliance to Federal Travel Regulations except determination that the travel serves the convenience of the agency or is in the primary interest of the Government and, by focusing solely on the language of the Authority for its modification of the Award, 3 Respondent advances a plausible argument,

". . . that any travel and per diem payments made under the contract would have to meet the 'certification' requirement that the travel is in the 'primary interest' of the Government . . . Therefore, Respondent must first determine the propriety of the travel expenses under the FTRs . . . before payment can be [ v28 p4 ] made to Grievants." (Res. Response and motion, p. 8).

The fallacy of Respondent's argument is that it ignores the central holding of the Authority in denying Respondent's exceptions. The adequacy of compliance with an arbitration award must be determined, inter alia, by whether Respondent's construction of the award is reasonable, which would depend on whether the construction is consistent with the entire award. United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Austin Service Center, Austin, Texas, 25 FLRA No. 4, 25 FLRA 71, 72 (1987). In denying Respondent's exceptions in the instant case the Authority stated, in part, as follows:

"In its decision in BATF (Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983)), 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 1, Section 1.8 of the parties' agreement in this case (G.C. Exh. 2) 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 (21 FLRA 6) (1986). 4 [ v28 p5 ]

". . . the Authority ruled in U.S. Customs Service, that the proposal . . . was not inconsistent with the Travel Expense Act, 5 U.S.C. 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. . . . 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 (Respondent's) third, fourth and fifth exceptions also fail to establish that the award is deficient as alleged. Accordingly, these exceptions 5 must also be denied." (21 FLRA at 425-426). [ v28 p6 ]

Beyond doubt, the Authority, herein has found that the parties, by their agreement, had made the "primary interest" determination, i.e.,

". . . 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 bad thereby determined that the covered activities were sufficiently within the interest of the United States so as to constitute official business."

Moreover, the Authority, in modifying the award, specifically incorporated the "primary interest" determination made by the parties' agreement by its reference to ". . . Payment of travel and per diem expenses in connection with the covered activities. . . ." In U.S. Customs, supra, the Authority, after first stating that the "primary interest" determination can be made in the negotiated agreement, indeed, ". . . that insofar as an agency has discretion regarding a matter affecting conditions of employment it is obligated under the Statute to exercise that discretion through negotiation unless precluded by regulatory or statutory provisions . . . the Agency has not cited any legal or regulatory provision, [ v28 p7 ] nor is any apparent, which would absolutely prohibit it from exercising through negotiations. . . ." (21 FLRA at 10-11), then stated,

"The union has acknowledged that payment of any travel expenses flowing from this proposal . . . would be subject to the provisions of the FTRs (footnote omitted). Hence, we conclude the proposal would not require the Agency to authorize either specific travel or expenses which do not comport with the regulatory requirements and restrictions. The proposal was not intended to, and could not, require the Agency to use specific authorization procedures and practices relating to actual travel which conflicted with the FTRs. It would not foreclose individual determinations regarding the propriety under the FTRs of authorizing particular travel and expenses. . . ." (21 FLRA at 11). 6

Respondent's refusal to comply with the Award because of the absence of "primary interest" determination (Res. Response and Motion, pp. 8-10; 12-13) is without merit as the Authority previously has held that the Arbitrator's determination constitutes a finding that Respondent 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. Respondent's other contentions have been carefully considered and have been found without merit. [ v28 p8 ]

Accordingly, Respondent's Motion for Summary Judgment is denied and General Counsel's Motion for Summary Judgment is granted.

Having found that Respondent violated 16(a)(1) and (8) of the Statute by its failure and refusal to comply with the Arbitration Award, as modified by the Authority, it is recommended that the Authority adopt the following:

ORDER

Pursuant to 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. 2423.29, and 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that the Department of the Interior, Bureau of Reclamation, Upper Colorado River Storage Project, Salt Lake City, Utah, shall:

1. Cease and desist from:

(a) Refusing to comply with the Arbitration Award of Leo Weiss, dated October 7, 1985, as modified by the Authority on April 22, 1986, 21 FLRA No. 58, 21 FLRA 421, 427.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Forthwith comply fully with arbitrator Leo Weiss' October 7, 1985, arbitration award, as modified by the Authority on April 22, 1986, and specifically make the Grievants, Henry Dhieux, Frank Culp and Lanis Reynolds, whole for any losses, pursuant to the Federal Travel Regulations, they may have suffered as a result of Respondent's breach of Article 1, Section 1.8 of the Basic Agreement, whereby Respondent had exercised its discretion under the Travel Expense Act and had thereby determined that the covered activities were sufficiently within the interest of the United States so as to constitute official business.

(b) Post at all facilities of the Bureau of Reclamation, Upper Colorado River Storage [ v28 p9 ] Project, 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 Regional Director of the Bureau of Reclamation 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.

(c) Pursuant to 2423.30 of the Authority's Rules and Regulations, 5 C.F.R. 2423.30, notify the Regional Director, Region VII, Federal Labor Relations Authority, 535 - 16th Street, Suite 310, Denver, CO 80202, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

WILLIAM B. DEVANEY
Administrative Law Judge

Dated:  April 17, 1987
        Washington, D.C.

[ v28 p10 ]

                       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 STATUTE
                 WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to comply with the Arbitration Award of Leo Weiss, dated October 7, 1985, as modified by the Authority on April 22, 1986, 21 FLRA No. 58, 21 FLRA 421, 427.

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 Federal Service Labor - Management Relations Statute.

WE WILL forthwith comply fully with arbitrator Leo Weiss' October 7, 1985, arbitration award, as modified by the Authority on April 22, 1986, and specifically make the Grievants, Henry Dhieux, Frank Culp and Lanis Reynolds, whole for any losses, pursuant to the Federal Travel Regulations, they may have suffered as a result of Respondent's breach of Article 1, Section 1.8 of our Basic Agreement, whereby Respondent had exercised its discretion under the Travel Expense Act and had thereby determined that the covered activities were sufficiently within the interest of the United States so as to to constitute official business.

                             ______________________________
                                   (Agency or Activity)

Dated: ________________  By: ______________________________
                                       (Signature)

[PAGE]

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VII, whose address is: 535 - 16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 837-5224. [ v28 p2 ]

FOOTNOTES

Footnote 1 The Respondent also filed a motion to strike part of the General Counsel's opposition, alleging that the General Counsel mischaracterized the arbitration award in the case. Since we have not relied in any way on the disputed characterization, we find that the Respondent's argument does not provide a basis for striking any part of the General Counsel's submission. The Respondent's motion is therefore denied.

Footnote 2 For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7116(a)(1) will be referred to, simply, as "16(a)(1)."

Footnote 3 As set forth in Respondent's Brief, and as the Authority stated, 21 FLRA at 426, "Additionally, in finding the proposal in U.S. Customs Service, (21 FLRA No. 2, 21 FLRA 6 (1986)) 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 (FTR's). (footnote omitted) 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 FTR's. Consequently, the Authority must modify the award to assure that it is consistent with the requirement of the FTR's (Res. Response and Motion, p. 6) (Emphasis-in Res. Response and Motion).

Footnote 4 I am aware of the Authority's decision in National Labor Relations Board Union, 22 FLRA No. 50, 22 FLRA 486 (1986), which as to Alternative Proposal Number 1 appears to be inconsistent with U.S. Customs Service, supra. Nevertheless, each involved negotiability determinations and I find it unnecessary to reconcile the differences, if any, inasmuch as the present case does not involve a negotiating proposal but, to the contrary, a contractual provision agreed upon by the parties. That is, the present case does not involve what Respondent might have been obligated to bargain about but, rather, the agreement Respondent made. Respondent's argument concerning the absence of its intent to negotiate "primary interest" (Res. Response and motion, pp. 7-8), while interesting, was specifically raised before the Authority (see, for example, Exception to Arbitration Award, G.C. Exh. 4, pp. 7-8) and was rejected by the Authority.

Footnote 5 As the Authority stated, Respondent's third, fourth and fifth exceptions were: "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 . . . that the Arbitrator . . . overlooked the essentia