30:0477(60)AR - Agriculture, Food and Nutrition Service, Midwest Region and NTEU -- 1987 FLRAdec AR



[ v30 p477 ]
30:0477(60)AR
The decision of the Authority follows:


 30 FLRA NO. 60
 30 FLRA 477

14 DEC 1987


U.S. DEPARTMENT OF AGRICULTURE
FOOD AND NUTRITION SERVICE
MIDWEST REGION

                   Agency

         and

NATIONAL TREASURY EMPLOYEES UNION

                   Union

Case No. 0-AR-1339

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
supplemental interest arbitration award of Arbitrator Robert G.
Howlett filed by the Agency 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 award
requires the Agency to pay certain travel and per diem expenses
of Union representatives. For the reasons discussed below, we
conclude that the award is not contrary to law or regulation and
that the Agency is not precluded from implementing the award
because of pending court cases. Accordingly, we deny the
exceptions.

     II. Background and Arbitrator's Award

     During negotiations, the Union requested the assistance of
the Federal Service Impasses Panel (the Panel). During
proceedings before the Panel, the Agency alleged that several
Union proposals were nonnegotiable. The Union filed a petition
for review of those allegations with the Authority. Among the
issues presented were two proposals concerning the payment of
travel and per diem expenses. 1 The Authority found both
proposals negotiable in National Treasury Employees Union and
U.S. Department of Agriculture, Food and Nutrition service,
Midwest Region, 25 FLRA  1067 (1987) (Food and Nutrition service,
Midwest Region), petitions for review filed sub nom. National
Treasury Employees Union v. FLRA,  No. 87-1166 (D.C. Cir. April
15, 1987), and Department of Agriculture, Food and Nutrition
Service, Midwest Region v. FLRA,  No. 87-1178 (D.C. Cir. April
21, 1987).

     The Panel directed that part of the dispute be referred to
Mr. Howlett, a Member of the Panel, for mediation/ arbitration.
Mr. Howlett was authorized to mediate the issues and to render a
decision as an arbitrator on any that remained unresolved. A
number of issues were resolved during the mediation phase. Mr.
Howlett decided other issues in an arbitration award. Exceptions
to that award were filed by the Agency and were subsequently
resolved by the Authority in United States Department of
Agriculture Food and Nutrition Service, Midwest Region and
National Treasury Employees Union, 28 FLRA  580 (1987).

     Additionally, the Arbitrator retained jurisdiction with
regard to several issues. Subsequently, the Arbitrator issued a
Supplemental Opinion and Award in which he ruled on the
outstanding issues and clarified other rulings. The Arbitrator
directed the parties to incorporate into their agreement two
provisions for the payment of "(o)rdinary and customary travel
and per diem costs incurred by union representatives" in
connection with a variety of labor-management relations
activities. Those provisions are different from the proposals the
Authority found negotiable in Food and Nutrition Service, Midwest
Region.

     III. Exceptions

     The Agency excepts to that part of the Supplemental Opinion
and Award directing the parties to incorporate the travel and per
diem provisions into their agreement. The Agency asserts that it
is barred from including those provisions in the agreement
because the issue of payment of travel and per diem expenses is
pending in court. As an example, the Agency cites National
Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 21 FLRA  6 (1986) (Customs Service), petition
for review filed sub nom. Department of the Treasury, U.S.
Customs Service v. FLRA  No. 86-1198 (D.C. Cir. Mar. 27, 1986).


     The Agency further notes that at the time of the award,
judicial review of the Authority's decision in Food and Nutrition
Service, Midwest Region was being sought. The Agency argues that
in order "to maintain the reviewability of (that decision), the
agency is obligated to maintain its position that payment of
travel and per diem expenses to union representatives is not a
(sic) appropriate subject for bargaining . . . ." Agency Brief at
4.

     The Agency also contends that the provisions are
inconsistent with Federal law and Government-wide regulations.
The Agency claims that the award orders payment of travel and per
diem costs but fails to require that travel vouchers be
consistent with the Travel Expense Act and the Federal Travel
Regulations (FTRs). In support of its argument, the Agency cites
the Authority's decision in National Association of Agricultural
Employees and U.S. Department of Agriculture. Animal and Plant
Health Inspection Service, 22 FLRA  451 (1986) (Proposal 2). The
Agency argues that in that case the Authority determined that a
union proposal for the payment of travel and per diem expenses
was outside the duty to bargain since it could not be concluded
that the proposal would allow for compliance with the
requirements of the Travel Expense Act and the FTRs.

     IV. Analysis and Conclusion

     We find that the Agency has failed to establish that the
disputed portion of the Arbitrator's Supplemental opinion and
Award is deficient on any of the grounds set forth in section
7122(a) of the Statute. Specifically, the Agency fails to
establish that the award is contrary to law, rule or regulation
or that it is deficient on any grounds similar to those applied
by Federal courts in private sector labor relations cases.

     First, we reject the Agency's assertion that it is precluded
from implementing the Arbitrator's award because of pending court
appeals. The Agency provides no persuasive support for this
assertion. Moreover, the assertion does not provide any ground
for Authority action concerning an award under section 7122(a) of
the Statute. To the extent that the Agency is requesting a stay
of the award or that this case be held in abeyance pending
completion of judicial review of the travel and per diem issue,
such request is likewise without merit. See National Treasury
Employees Union and Department of the Treasury, Internal Revenue
Service, 29 FLRA  No. 101 (1987), slip op. at 4; Internal Revenue
Service and National Treasury Employees Union, 28 FLRA  14
(1987), petition for review filed sub nom. Department of
the Treasury, Internal Revenue Service v. FLRA,  No. 87-1456
(D.C. Cir. Sept. 1, 1987). We also note that effective December
31, 1986, the Authority's Regulations were revised to revoke the
provision pertaining to the filing of requests for stays of
arbitration awards. (51 Fed. Reg. 54754). Thus, when the Agency
filed its submission with the Authority in this case on April 3,
1987, there was no provision in the Authority's Regulations for
requesting a stay of the Arbitrator's award.

     Moreover, the Agency fails to establish that the award is
contrary to the Travel Expense Act and the FTRs. The provisions
the Arbitrator directed the parties to incorporate into their
agreement are not materially different from provisions the
Authority found negotiable in National Joint Council of Food
Inspection Locals, AFGE AFL - CIO and Food Safety and Inspection
Service, U.S. Department of Agriculture, 23 FLRA  10 (1986),
petition for review filed sub nom. U.S. Department of
Agriculture, Food Safety and Inspection Service v. FLRA,  No.
86-1476 (D.C. Cir. Aug. 25, 1986). In that case the Authority
rejected the Agency's argument that the provisions were contrary
to the Travel Expense Act and the FTRs. We likewise reject the
Agency's identical argument in this case. See also United States
Department of Agriculture, Washington, D.C. and United States
Department of Agriculture, Farmers Home Administration, Little
Rock, Arkansas, 24 FLRA  682 (1986), petition for review filed
sub nom. U.S. Department of Agriculture, Farmers Home
Administration. Arkansas State Office v. FLRA,  No. 87-1053 (D.C.
Cir. Feb. 3, 1987).

     Furthermore, the Agency's assertion that the disputed
provisions are like the proposal the Authority found
nonnegotiable in Animal and Plant Health Inspection Service is
without merit. The proposal in that case was described by the
union as providing for an "automatic right" of union
representatives to travel and per diem expenses. The Authority
found that by requiring the "automatic" payment of travel and per
diem, the proposal was inconsistent with law and regulation
because it did not permit a determination as to whether those
expenses were incurred in the primary interest of the
Government.

     In this case, however, unlike the proposal in Animal and
Plant Health Inspection Service, the disputed provisions do not
require the "automatic" payment of travel and per diem. Rather,
they only provide for the payment of ordinary  and
customary travel and per diem expenses incurred in connection
with a variety of labor-management relations activities. Contrary
to the Agency's assertion, the provisions would not prevent the
Agency from determining whether particular expense claims are
consistent with requirements of the Travel Expense Act and the
FTRs. In the proceeding before the Arbitrator, the Union accepted
the test for reimbursement of travel and per diem expenses set
forth in National Treasury Employees Union a Department of the
Treasury, Internal Revenue Service, 21 FLRA  110l (1986),
petition for review filed sub nom. Department of the Treasury,
Internal Revenue Service v. FLRA,  No. 86-1373 (D.C. Cir. June
25, 1986). Furthermore, the Arbitrator found that the pa