51:0541(48)AR - - NAGE Local R12-33 and Navy, Naval Air Warfare Division, Point Mugu, CA - - 1995 FLRAdec AR - - v51 p541
[ v51 p541 ]
The decision of the Authority follows:
51 FLRA No. 48
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
NAVAL AIR WARFARE CENTER
POINT MUGU, CALIFORNIA
November 30, 1995
Before the Authority: Phyllis N. Segal, Chair and Tony Armendariz, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Philip Kienast 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 Regulations. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator denied a grievance seeking per diem payments for expenses incurred while on temporary duty assignments.
For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Arbitrator's Award
The grievant, a firefighter permanently assigned to a worksite on Saint Nicholas Island (SNI), California, was on several occasions assigned temporary duty to a worksite at Point Mugu, California. The Agency denied the grievant per diem payments on the ground that he did not incur additional subsistence expenses while on the temporary assignments.
The Arbitrator determined that under the Department of Defense Civilian Personnel Joint Travel Regulations, Chapter C4552 (JTR, Chapter C4552),(1) a "temporary duty assignment must necessitate additional subsistence expenses, not simply make additional expenses possible." Award at 4. The Arbitrator noted that the Agency makes cooking facilities available at both the SNI and the Point Mugu work sites and that the grievant normally prepares his meals in the cooking facilities at his permanent worksite on SNI. The Arbitrator concluded that, in the absence of evidence that the grievant was denied the opportunity to bring food for meal preparation from SNI to Point Mugu, the grievant had not incurred subsistence expenses "because of the temporary duty assignments in question." Id. Accordingly, the Arbitrator denied the grievance.
The Union contends that the award fails to draw its essence from the parties' collective bargaining agreement(2) and is contrary to regulation. The Union asserts that the Arbitrator erred in finding that, in order to be entitled to per diem under JTR, Chapter C4552, subsistence expenses incurred must have been necessitated by the temporary duty assignments. The Union maintains that the JTR provision requires only that subsistence expenses be incurred.
IV. Analysis and Conclusions
A. JTR, Chapter C4552 Governs the Dispute
An arbitration award that conflicts with a rule or regulation that governs the matter in dispute will be