29:0465(45)AR - AFGE, DLA COUNCIL LOCAL 3953 VS DOD, DLA
[ v29 p465 ]
The decision of the Authority follows:
29 FLRA NO. 45 DEFENSE LOGISTICS AGENCY Agency and THE DLA COUNCIL OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE) AFL-CIO LOCALS LOCAL 3953 Union Case No. 0-AR-1398
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Stanley H. Sergent, Jr. filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition. For the reasons stated below, the Union's exceptions are denied.
II. Background and Arbitrator's Award
The Union grieved the Agency's alleged violation of the parties' agreement by the Agency's refusal to grant the Union President official time and payment of travel and per diem for his representational duties. The grievance was submitted to arbitration. Prior to a scheduled hearing, the Arbitrator permitted the Union to use the hearing for the purpose of addressing procedural questions relating to witnesses. The issues before the Arbitrator in this case were (1) which, if any, of the witnesses requested by the Union were relevant and necessary to testify in the hearing; and (2) whether those witnesses were entitled to travel and per diem expenses.
As to the first issue, the Arbitrator determined, based on his interpretation of the parties' agreement, that the testimony of only one witness was relevant and necessary. As to the second issue, he found that Article 37, Section 4D of the parties' agreement does not compel the Agency to pay travel and/or per diem expenses of employees called as witnesses in arbitration. He based this determination on the following factors: (1) the section makes no mention of an allowance for travel and per diem expenses; (2) the fact that negotiators of the agreement specifically provided for the payment of travel and per diem in other provisions of the parties' agreement produced a compelling inference that the parties did not intend duty status under Article 37 to include travel and per diem; and (3) the parties' bargaining history showed that during negotiations a proposal by the Union which would have obligated the Agency to pay the travel expenses of witnesses to an arbitration hearing was considered and rejected.
The Union contends that the part of the award rejecting the Union's request for payment of travel and per diem expenses is contrary to law, specifically 5 U.S.C. 5701. The Union asserts that Federal employees are enti