45:0218(17)AR - - Army, Fort Campbell, KY and AFGE Local 2022 - - 1992 FLRAdec AR - - v45 p218
[ v45 p218 ]
The decision of the Authority follows:
45 FLRA No. 17
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator J. Reese Johnston, 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 to the Union's exception.
The Agency withheld $418.80 from the grievant's pay check after it determined that a portion of the claimed expenses submitted by the grievant on his travel voucher was fraudulent. Arbitrator Henry B. Welch directed that the Agency repay that amount to the grievant. The Agency filed exceptions to the award. In 37 FLRA 186,*/ we found that the award was contrary to regulation and remanded the case to the parties with the direction that, absent settlement, they resubmit the merits of the grievance to arbitration. The parties submitted the merits of the grievance to Arbitrator Johnston, who denied the grievance.
We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator Welch's Award
The grievant performed a temporary duty assignment for 2 weeks for which he was entitled to a per diem allowance and a mileage allowance. Prior to departing for the assignment, the grievant received a travel advance of $450.00. After returning from the assignment, the grievant submitted a travel voucher and claimed reimbursement for the following expenses:
LODGING, $241.00; LAUNDRY, $81.00; AUTO MILEAGE, $38.00; and TIPS (Maids and bellboys) $72.00; TOTAL: $432.00. Meals: $25.00 per day . . . .
37 FLRA at 187 (quoting Welch Award at 4).
The Agency determined that the claims for laundry expenses and tips were false and fraudulent. The Agency notified the grievant that except for mileage allowance of $46.20, payment of his travel voucher was denied. The Agency demanded recoupment of the balance of the travel advance. When the grievant failed to reimburse the Agency, the Agency deducted $403.80, plus a service charge of $15.00, from the grievant's pay check.
The grievant filed a grievance disputing the withholding of $418.80 from his pay. The grievance was not resolved and was submitted to Arbitrator Welch on the issues of whether the grievance was arbitrable and whether the grievant had filed a false claim.
Arbitrator Welch determined that the grievance was grievable and arbitrable. On the issue of whether the grievant had filed a false claim, Arbitrator Welch found that the Agency's denial of the grievant's travel voucher was not consistent with Department of Defense Civilian Personnel, Volume 2, Joint Travel Regulations (JTR). The Arbitrator determined that under Part H.C4352 of the JTR, only the suspected expenses of laundry and tips could be disallowed. Accordingly, Arbitrator Welch directed that the Agency repay the grievant the $418.80 recouped from his pay.
III. Decision in 37 FLRA 186
We concluded that JTR Part H.C4352 governed the disposition of the grievance and that Arbitrator Welch had misinterpreted it in reversing the recoupment. Contrary to the finding of the Arbitrator, we found that Part H.C4352 clearly prescribes that the per diem allowance must be disallowed for any day concerning which an employee has falsified a claimed expense for any of the following: lodging, meals, or incidentals encompassed by the per diem allowance, which incidentals specifically include laundry and tips for maids and bellhops. Consequently, we ruled that the award was deficient because it sustained the grievance based solely on an incorrect interpretation of Part H.C4352. We advised that in view of the provisions of Part H.C4352, the grievance could not properly be resolved without determining the stipulated issue of whether the grievant had filed a false claim, which Arbitrator Welch failed to do. In order that the submitted issue of whether the grievant had filed a false claim could be properly resolved, we remanded the case to the parties with the direction that, absent settlement, they submit the merits of the grievance to arbitration for further proceedings consistent with our decision.
IV. Arbitrator Johnston's Award
In accordance with our decision in 37 FLRA 186, the parties submitted the issue of whether the grievant had filed a false claim for laundry and tips to Arbitrator Johnston. The Arbitrator noted that Part H.C4352, entitled "Handling of Falsified Travel Claims," pertinently provides, as follows:
When there is reasonable cause to suspect that an employee has falsified a claimed expense for lodging, meals, or incidentals, per diem or actual expenses allowance (as applicable) will be denied for the entire day on which the suspect expense is claimed.
Award at 4 (quoting Part H.C4352). In terms of Part H.C4352, the Arbitrator determined that there was reasonable cause to suspect that the grievant had falsified claimed expenses for incidentals. Consequently, "based on the narrow issue before [him] [the Arbitrator] . . . resolve[d] the grievance against [the grievant]." Id. at 6.
Accordingly, as his award, the Arbitrator denied the grievance. In denying the grievance, the Arbitrator noted that the incidental expenses of tips and laundry are not specifically reimbursable, but are, instead, encompassed by the per diem allowance. The Arbitrator commented that "it seem[ed] unfair and inequitable to . . . claim [the grievant] made a false claim for items that he could not, under current regulations, be reimbursed for[.]" Id. at 7.
V. Union's Exception
A. Positions of the Parties
1. The Union
The Union argues that the award is deficient because the grievant was treated differently than other employees who claimed tips and laundry expenses. The Union maintains that no other employees had payment of their travel vouchers denied. The Union further argues that the Arbitrator failed to consider testimony establishing that the grievant's claims were not fraudulent and that the submission of the claims was based on the advice of the official in charge during the temporary duty and the employees in the Agency's travel section.
The Union also argues that the Arbitrator erroneously interpreted the JTR. The Union maintains that tips and laundry expenses are not encompassed by the term "incidentals" as used in Part H.C4352, but rather are included in the per diem allowance for meals. Therefore, the Union asserts that because the claim for tips and laundry expenses, regardless of amount, could not have been paid, the Arbitrator should not have determined that the claim was a falsified expense claim so as to have denied the grievant his per diem allowance for meals.
2. The Agency
The Agency contends that the Union's exception provides no basis for finding the award deficient because the exception constitutes nothing more than an attempt to relitigate the merits of the grievance before the Authority and disagreement with the Arbitrator's evaluation of the evidence and testimony, reasoning and conclusions, and interpretation of the JTR. In addition, the Agency contends that the Arbitrator properly interpreted Part H.C4352. The Agency maintains that there is nothing in Part H.C4352 that limits the authority to deny per diem to situations where the employee submits a false claim for authorized expenses. The Agency asserts that the regulation only requires reasonable cause to suspect that the employee submitted a false claim for lodging, meals, and incidentals and that the Authority decided in 37 FLRA 186 that the term "incidentals" encompassed tips and laundry expenses.
B. Analysis and Conclusions
We conclude that the Union's exception provides no basis for finding the award deficient.
Without deciding whether the award would be deficient if the grievant and the other employees who submitted claims for tips and laundry expenses were similarly situated, we find that the Union fails to establish that the grievant and the other employees were similarly situated. Unlike the situation with the grievant where the Agency had reasonable cause to suspect that the grievant had falsified his claimed expenses for tips and laundry, the Union in no manner demonstrates that the Agency had reasonable cause to suspect that the other employees had falsified their claimed expenses for tips and laundry. Accordingly, the Union's contention provides no basis for finding the award deficient. We further find that the Union's contentions that the Arbitrator failed to consider certain evidence and testimony constitute nothing more t