U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)

[ v56 p119 ]

56 FLRA No. 12

U.S. DEPARTMENT OF DEFENSE
EDUCATION ACTIVITY, ARLINGTON, VIRGINIA
(Agency)

and

FEDERAL EDUCATION ASSOCIATION
(Union)

0-AR-3095

_____

DECISION

February 29, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Frederick U. Reel 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 Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator sustained a grievance regarding the Agency's denial of travel reimbursement for employees not entitled to renewal agreement travel (RAT). For the reasons that follow, we set aside the award as contrary to law.

II.     Background and Award

A.     Background

      The origins of the dispute in this case began during bargaining over a Union proposal which sought to permit employees to travel home during summers when they were not eligible for RAT under 5 U.S.C. § 5728. The proposal provided that employees would purchase tickets at their own expense, but under Government travel orders. The parties did not reach agreement and sought the assistance of the Panel. The Panel modified the Union's proposal and ordered the parties to adopt the following language as part of their agreement:

A unit employee, not otherwise eligible for Government travel to his or her home of record in the United States at the close of the school year, may choose to pay the Government contract rate in effect at the time, rather than the commercial rate, to travel by regular commercial carrier to his or her home of record at the close of the school year. If requested, in writing, the Employer shall pay the difference between the applicable Government contract rate for such travel, and the applicable commercial rate, if any.

Exceptions at 4, citing Union Post Hearing Brief at 2 (emphasis deleted). See also 92 FSIP Nos. 17 and 103 at 7, Panel Release 339, December 18, 1992, and Report and Recommendation of Fact Finder Seidenberg at 43-47. Before the fact finder and the Panel, the Agency responded only to the proposal on issuing travel orders. The Agency never replied to any proposal regarding Agency payment of partial travel expense.

      The Agency head reviewed and disapproved the provision imposed by the Panel. However, the Agency served the disapproval on the Union late. Therefore, the disapproval had no effect, and the Union considered the provision as part of the parties' collective bargaining agreement. Nevertheless, the Agency refused to implement the provision. As a result, the Union filed a grievance which was not resolved and was submitted to arbitration.

B.     Arbitrator's Award

      The Arbitrator found that the facts were not in dispute. At the end of the school year, certain employees, who were not authorized RAT, traveled to their homes in the United States from the European schools to which they were assigned. They filed written requests for reimbursement of the difference between the commercial air fare rate which they paid and the Government contract rate which was appreciably less. The Agency denied the claims, citing 5 U.S.C. § 5728, "although acknowledging that their claims were appropriate under a decision of the [Panel]." Award at 1.

      According to the Arbitrator, the Agency refused to pay for the travel costs of employees not entitled to RAT, citing 5 U.S.C. §§ 5722 and 5728. [n1]  The Arbitrator stated that the Union claimed that Section 5722 did authorize the travel. The Arbitrator concluded that:

[Section 5722] would seem to be the necessary congressional authorization notwithstanding that Section 5728 requires the completion of a tour of duty to be eligible for RAT. [ v56 p120 ]

Award at 2. The Arbitrator sustained the grievance and ordered the Agency to reimburse the employees the difference between the commercial air fare rate and the Government rate together with interest. The Arbitrator retained jurisdiction to decide any claims for attorney fees from the Union.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is contrary to law because the Panel's Order is contrary to law. Because they are contrary to law, the Agency maintains that it cannot implement the award that enforces the Panel's Order.

      The Agency asserts that the Panel's Order requires the expenditure of appropriated funds to any bargaining unit employee who travels home for the summer, who is not otherwise eligible for Government travel reimbursement. The Agency also asserts that the Panel's Order applies to classes of persons who are excluded from travel benefits under sections 5722 and 5728, such as local hires. [n2]  The Agency states that section 5728 provides for vacation travel for employees entitled to that benefit. The Agency argues that section 5728 would have no purpose if, as the Union claims, section 5722 also provides authorization for reimbursement for vacation travel. The Agency contends that 5 U.S.C. § 5722 does not provide statutory authority to reimburse employees for any of the costs of personal travel, let alone a cost which could exceed the cost the government would pay if the travel were official business.

      The Agency contends that section 5722 permits an Agency to pay for the travel and transportation expense for household goods and personal effects of an employee hired in the United States to move to an overseas assignment and, if the requisite period of service has been completed, to pay for the employee's return travel and transportation expenses upon separation from the service. The Agency further contends that the legislative history of section 5722 confirms that it only authorizes payment of travel and transportation expense to the initial post of duty, and back upon separation from the service. The Agency maintains that because the award enforcing the Panel's Order "misapprehends the reach" of section 5722, the award must be set aside because it is contrary to law. Exceptions at 14. [n3] 

      The Agency asserts that the Panel's Order conflicts with the Federal Travel Regulations (FTRs) which prohibit such travel reimbursements. The Agency also contends that enforcing the Panel's Order would "violate the Appropriations Clause, the doctrine of separation of powers and the doctrine of sovereign immunity contained in the United States Constitution." Exceptions at 7.

B.     Union's Opposition

      The Union argues that the Agency has no standing to challenge the Panel's Order in this arbitration proceeding. The Union contends that the Panel's Order became a part of the parties' agreement when the Agency did not timely disapprove it. Therefore, the Union asserts that the Agency cannot now refuse to comply with the Order, as enforced by the Arbitrator.

      The Union claims that the Panel's Order is not inconsistent with sections 5722 and 5728. According to the Union, the Order does not render section 5728 meaningless. Rather, the Union asserts that sections 5722 and 5728 provide unit employees with different levels of transportation benefits and at different times. The Union maintains that when employees are not eligible for RAT under section 5728, under the Order, they nevertheless may receive reimbursement for transportation expenses under section 5722.

      Contrary to the Agency's contention, the Union claims that section 5722 does not apply only to separation travel. The Union asserts that section 5722 applies to other travel, including travel for those employees who have completed 1-year's service, as the employees here had done. The Union contends that section 5722 provides ample authorization for the Agency to reimburse unit employees the difference between commercial and government air fare rates when traveling between an overseas post and place of actual residence in the United States. Moreover, contrary to the Agency's reliance on the underlying legislative history of section 5722, the Union argues that because the plain meaning of the section is so clear, the legislative history need not be consulted. [ v56 p121 ]

      The Union also states that, if the Authority finds that section 5722 does not provide the necessary authorization for the payment of travel expenses for employees not otherwise eligible for RAT, the Union requests that the Authority consider whether 5 U.S.C. § 4109, or any other statute, provides the necessary authorization. In the alternative, the Union requests that the Authority remand the question to the Arbitrator for a determination as to whether any other statute may provide the authorization for payment of the travel expense.

IV.     Analysis and Conclusions

A.     Standing to Challenge Panel's Order and Standard for Review

      Under the provisions of the Statute an agency head is authorized to review and approve or disapprove all provisions of collective bargaining agreements, even those provisions imposed upon the parties by the Panel in resolution of an impasse. Interpretation and Guidance, 15 FLRA 564, 569 (1984). Section 7114(c)(3) of the Statute provides that an agreement which has not been approved or disapproved by the agency involved within 30 days after the date of its execution becomes effective and binding on the parties on the 31st day, without the approval of the agency, subject only to the requirements of the Statute and any other applicable law, rule or regulation. Consequently, because the Agency's disapproval of the Panel's Order was untimely served on the Union, the Order became binding on the parties unless it is contrary to the Statute or any other applicable law, rule or regulation. A question as to the validity of such a provision may be raised in other appropriate proceedings (such as grievance arbitration and unfair labor practice proceedings) and, if the agreement provision is found to be in violation of the Statute or any other applicable law, rule or regulation, it would not be enforceable but would be void and unenforceable.  [n4]  See American Federation of Government Employees, AFL-CIO, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, 28 FLRA 1142, 1143-44 (1987); Point Mugu Joint Council of National Association of Government Employees, Local R12-33 and National Federation of Federal Employees, Local 1374 and Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 8 FLRA 389, 390 (1982). Accordingly, we find that the Agency has standing to challenge the Panel's Order in this arbitration proceeding.

      An agency does not violate the Statute when it fails to implement a Panel Order subsequently found to be contrary to law. See, e.g., Veterans Administration, Washington, D.C., 33 FLRA 426, 428 (1988) (agency had no obligation to implement grievance procedure imposed by the Panel where employees' conditions of employment are within the discretion of the VA Administrator under 38 U.S.C. § 4108(a)); Department of Defense, National Guard Bureau, Indiana Air National Guard, Indianapolis, Indiana, 17 FLRA 23, 24 (1985) (agency did not violate Statute in refusing to implement Panel-imposed provisions on wearing of military uniforms).

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.  [n5] 

B.     Section 5722

      The Union contends that section 5722 provides the necessary authorization for the payment of the travel at issue. The Agency argues to the contrary. As the language of section 5722 does not clearly resolve this dispute, we examine the language of that section and turn to the legislative history of section 5722. [ v56 p122 ]

      Section 5722, when read in its entirety, provides for payment of travel expense for new hires from the United States to a post abroad, and then "return travel" to the United States at the time of separation. It does not expressly provide for travel in the reverse direction, that is, from a post abroad to the United States and then return travel to the post abroad. Nothing in its plain wording indicates that section 5722 applies to current employees already at posts outside the continental United States who are not returning to the United States at time of separation.

      When enacted in 1946, section 5722 was originally numbered section 73b-3 of title 5. Section 73b-3 authorized certain return travel and transportation expenses for new appointees assigned to overseas posts of duty. Those expenses were authorized only if "the person selected for the appointment shall agree in writing to remain in the Government service for the twelve months following his appointment, unless separated for reasons beyond his control."

      In 1950, section 73b-3 was amended. As relevant here, the amendment added the following proviso:

[P]rovided further, That expenses of return travel and transportation upon separation from the service shall be allowed whether such separation is for the purposes of the Government or for personal convenience, but shall not be allowed unless such persons selected for appointment outside the continental United States shall have served for a minimum period of not less than one nor more than three years prescribed in advance by the head of the department or agency concerned or unless separation is for reasons beyond the control of the individual and acceptable to the department or agency concerned.

Chapter 1010, Pub. L. No. 830 (1950) (emphasis added).

      The Senate Report accompanying the 1950 amendment states that the amendment would "specify that employees selected for overseas service will be entitled to . . . return transportation regardless of the reasons of separation upon completion of the period of employment specified in advance, not to exceed 3 years." Senate Report 2495, Aug. 30, 1950 (emphasis added). The Report also states that, "[upon completion of the agreed period of service return transportation would be allowed whether separation was for purposes of the Government or for personal convenience." Id. This language indicates that Congress intended the authorized funds to be payed upon completion of the employee's contractual term of employment.

      Section 73b-3 was amended in 1961. The 1961 amendments left intact the "upon separation from the service" language that had been added by the 1950 amendment. However, when section 73b-3 was renumbered section 5722 in 1966, that language was excised. The historical and statutory notes accompanying 5 U.S.C.A. § 5722 state only that "standard changes" were made to the 1961 language, in order "to conform with . . . the style of" title 5. 5 U.S.C.A. § 5722, Historical and Statutory Notes at 201.

      Consistent with the legislative history, we conclude that section 5722 authorizes return travel and transportation expenses only at the end of an employee's term of employment. In this regard, the Court of Claims has held that section 5722 "is limited to travel at the beginning and end of a tour of duty . . . . A travel agreement's requirement that the employee remain in [F]ederal employment for a certain period of time only makes sense if section 5722 is limited to pre- and post-employment travel." Brown and Davis v. United States, 230 Ct. Cl. 735, 737 (1982). Thus, section 5722 does not authorize the travel at issue in this case.

C.     Section 4109

      As to the Union's request that the Authority consider whether 5 U.S.C. § 4109 provides the necessary authorization, we find that section 4109, which provides for payment of travel expense in conjunction with attending training, does not provide the necessary authorization. Attendance at a training course cannot be equated with vacation. Accordingly, the Union's reliance on section 4109 is misplaced.

D.     FTRs and the Constitution

      The Agency also claims that the award is contrary to the FTRs and the Appropriations Clause and the doctrine of sovereign immunity of the U.S. Constitution because there is no authority to pay for this travel. The Union cites no authority to pay for the travel other than sections 5722 and 4109. Thus, based on this record we do not find a legal basis to support the payment.

E.     Summary

      The Agency's exception has demonstrated that the award is contrary to law. In particular, we find that the award, implementing the Panel's Order, requires an expenditure of Federal money that is not authorized by law. Therefore, it is deficient and must be set aside.

V.     Decision

      We find that the award is contrary to 5 U.S.C. § 5722 and is inconsistent with the requirement that the expenditure of Federal money be authorized by law and, therefore, we set aside the award. [ v56 p123 ]


APPENDIX

5 U.S.C. § 5722     Travel and transportation expenses of new appointees; posts of duty outside the continental United States

      (a)     Under regulations prescribed under section 5738 of this title and subject to subsections (b) and (c) of this section, an agency may pay from its appropriations-

     (1)     travel expenses of a new appointee and transportation expenses of his immediate family and his household goods and personal effects from the place of actual residence at the time of appointment to the place of employment outside the continental United States;
     (2)     these expenses on the return of an employee from his post of duty outside the continental United States to the place of his actual residence at the time of assignment to duty outside the continental United States; and
     (3)     the expenses of transporting a privately owned motor vehicle as authorized under section 5727(c) of this title.

      (b)     An agency may pay expenses under subsection (a)(1) of this section only after the individual selected for appointment agrees in writing to remain in the Government service for a minimum period of-

     (1)     one school year as determined under chapter 25 of title 20, if selected for appointment to a teaching position, except as a substitute, in the Department of Defense under that chapter, or
     (2)     12 months after his appointment, if selected for appointment to any other position;unless separated for reasons beyond his control which are acceptable to the agency concerned. If the individual violates the agreement, the money spent by the Government for the expenses is recoverable from the individual as a debt due the Government.

      (c)     An agency may pay expenses under subsection (a)(2) of this section only after the individual has served for a minimum period of-

     (1)     one school year as determined under chapter 25 of title 20 if employed in a teaching position, except as a substitute, in the Department of Defense under that chapter; or
     (2)     not less than one nor more than 3 years prescribed in advance by the head of the agency, if employed in any other position;

unless separated for reasons beyond his control which are acceptable to the agency concerned. These expenses are payable whether the separation is for Government purposes or for personal convenience.

      (d)     This section does not apply to appropriations for the Foreign Service of the United States.



Footnote # 1 for 56 FLRA No. 12

   The text of section 5722 is set forth in the Appendix.


Footnote # 2 for 56 FLRA No. 12

   Locally-hired teachers, called local hires, are teachers who are hired overseas and, with certain exceptions not pertinent here, are generally not entitled to travel benefits unless or until they are transferred or reassigned from the overseas point of hire to another post of duty outside the United States. See Federal Education Association and U.S. Department of Defense Dependents Schools, 54 FLRA 818, 819 (1998) (FEA).


Footnote # 3 for 56 FLRA No. 12

   The Agency also contends that the Union attempts to have it "both ways" because the Panel's Order excludes persons who are "'otherwise