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56 FLRA No. 34
U.S. DEPARTMENT OF THE NAVY
UNITED STATES MARINE CORPS
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482
(Union)
0-AR-3220
_____
DECISION
April 27, 2000
_____
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.
Decision by Member Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Edna E. J. Francis 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 did not file an opposition to the Agency's exception.
The Arbitrator sustained a grievance alleging that the Agency violated a contractual agreement between the parties to provide television service to the grievants' individual sleeping quarters. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exception.
II. Background and Arbitrator's Award
The Agency agreed in a Memorandum of Understanding in 1993 to provide television service "via satellite dish" to the "day room" of the firehouse station and "cable service" to the individual firefighters' (grievants') sleeping quarters. [n1] Award at 5. Subsequently, the Agency unilaterally discontinued television service to the sleeping quarters, asserting that 31 U.S.C. § 1301(a) prohibited expenditure of funds for that television service. [n2]
The Union requested to bargain over the change in working conditions. The Agency denied this request. The Union then filed a grievance and, when the grievance was not resolved, the matter was submitted to arbitration. The Arbitrator framed the issue to be resolved as follows: Whether the Agency violated Article 4, sections 1a and 3b of the Master Labor Agreement. [n3] Award at 3.
The Arbitrator found that the Agency had not provided any support for its interpretation of section 1301(a) as prohibiting the use of appropriated funds to provide television service to sleeping quarters. In addition, the Arbitrator stated that if the Agency's interpretation of section 1301(a) were correct, then the provision would also prohibit paying for television service in the day room. Id. at 16-17. According to the Arbitrator, the Agency did not claim that providing television service to the day room would be prohibited under section 1301(a).
The Arbitrator determined that even if the Agency was permitted to terminate the cable television service to the sleeping quarters, the Agency was obligated, under Article 4, section 3b, to provide the Union notice of the intended change in working conditions and to [ v56 p266 ] offer the Union an opportunity to bargain over the impact and implementation of it. The Arbitrator found that the Agency had not fulfilled this obligation and, as such, violated Article 4.
The Arbitrator ordered the Agency to: (1) reinstate television service to the sleeping quarters; (2) reimburse firefighters who had expended personal funds for such service since its discontinuance; and (3) provide notice to the Union of intent to discontinue the service and provide the Union an opportunity to bargain over the impact and implementation of any such proposal.
III. Agency's Exception [n4]
The Agency argues that the award is contrary to section 1301(a) because entertainment expenses, including the television expenses here, are personal expenses that may not be paid from appropriated funds, and not "necessary expenses." Exception at 3 (quoting IRS, 66 Comp. Gen. 356, 359 (1987)). The Agency states that the Comptroller General has upheld the use of appropriated funds to pay for television service in only two instances: where the service enabled an agency to increase monitoring of advertising, and when it enabled employees to monitor local government and public proceedings which affected the agency. The Agency contends that unlike those instances, there is no nexus in this case between television service in the sleeping quarters and any of its specific appropriations or its mission. Therefore, according to the Agency, the award violates section 1301(a).
IV. Analysis and Conclusion
A. The award is not contrary to 31 U.S.C. § 1301(a).
Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised by an arbitrator's award or a party's exceptions de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). 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. See 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.
Section 1301(a) provides, as relevant here, that appropriation may be "applied only to the objects for which the appropriations were made . . . ." See note 2, supra. As plainly worded, section 1301(a) requires that appropriated funds be used consistent with particular appropriations. The Agency has neither asserted nor demonstrated that there are restrictions in its particular appropriations acts on the use of funds for television services.
The Agency also has not demonstrated that expenditure of funds for cable television services in the sleeping quarters is contrary to Comptroller General precedent. In reviewing whether appropriated funds are used for authorized purposes under section 1301(a), the Comptroller General applies the "necessary expense" test. Under that test, an expenditure that is not specifically set forth in the appropriations act is nevertheless permissible if it is reasonably necessary in carrying out an authorized function or will contribute materially to the effective accomplishment of that function, and if it is not otherwise prohibited by law. See IRS, 66 Comp. Gen. 356, 359 (1987); IRS, 71 Comp. Gen. 527, 528 (1992). In this connection, an agency has a broad range of discretion to determine that a particular expense is necessary for an authorized purpose. See Implementation of Army Safety Program, 1988 WL 228374 at *2. It is well established that where an agency has discretion under applicable law and regulation over a matter affecting conditions of employment, the agency is obligated under the Statute to exercise that discretion through bargaining unless the governing law or regulation specifically requires that only the agency may exercise that discretion. See, e.g., National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6, 10 (1986), aff'd sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988). There is no indication that only the Agency may exercise discretion to determine that television service in the disputed sleeping quarters is necessary. Here, the Agency exercised its discretion by entering into the memorandum of understanding to provide cable television services to the day room and the sleeping quarters. Cf. Veterans Administration Regional Office, Denver, Colorado and American Federation of Government Employees, Local Union 1557, 25 FLRA 1106, 1107 (1987) (an agency may exercise, through negotiations, its discretion to [ v56 p267 ] determine whether travel constitutes official business for the purposes of reimbursement of travel expenses).
The Comptroller General decisions relied upon by the Agency concerning cable television do not establish that the Agency lacked discretion to agree, in the memorandum of understanding, to provide cable television service. These decisions establish that the costs associated with providing cable television in an employee's home are normally considered the personal expense of the employee and not chargeable to appropriated funds. See Cable Television Costs, 1991 WL 174487 at *2. However, the decisions also establish that the provision of television service, under certain circumstances, can be considered as a necessary expense. See National Park Service, 1993 WL 496921. The decisions do not address whether the provision of cable television can be considered a necessary expense in agency-provided sleeping quarters. However, the Comptroller General has approved the use of appropriated funds to pay other entertainment expenses. See, e.g., 51 Comp. Gen. 797, 798-99 (1972) (agency authorized to use appropriated funds to provide music in the employees' workplace in order to create a pleasantly stimulating and efficient atmosphere).
It is clear from this precedent that the Comptroller General permits entertainment to be considered a necessary expense under some circumstances. As such, and noting particularly that the Agency does not question its discretion to continue to provide cable television service to the day room, we conclude that the Agency has not established that it lacks discretion to comply with its contractual agreement to provide such service to the sleeping quarters also. Therefore, the award is not contrary to section 1301(a). [n5]
V. Decision
The Agency's exception is denied.
Footnote # 1 for 56 FLRA No. 34
The 1993 Memorandum of Understanding provides:
The parties agree to the following concerning bargaining on T.V. service for the Fire Department:
a. T.V. cable service will be provided at government expense to firefighter's quarters at the Nebo Firehouse Station 401.
b. T.V. service via satellite dish will be provided for the day room at the Yermo Firehouse Station 402. Firefighter's quarters will continue to be provided T.V. service . . . at no charge to the employees.
Award at 5. As neither the parties nor the Arbitrator distinguish between "cable service" and "service via satellite dish," we will hereinafter refer to both as "television service."
Footnote # 2 for 56 FLRA No. 34
(a) Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.
Footnote # 3 for 56 FLRA No. 34
Article 4, sections 1a and 3b of the Master Labor Agreement provides, in relevant part:
Section 1. Past practices pertaining to personnel policies, practices, and working conditions in operation on the effective date of this agreement will continue if they comply with applicable law and regulations . . . .
a. The employer will notify the [Union] of such changes originating above the activity level that give rise to a bargaining obligation under the statute.
. . . .
Section 3b(1). Local Level Bargaining
(1) The party intending to make a change in conditions of employment will submit its proposals in writing to the other party.
Footnote # 4 for 56 FLRA No. 34
The Union did not file an opposition to the Agency's exception.
Footnote # 5 for 56 FLRA No. 34
We note that the Arbitrator based the remedy also on her finding that the Agency did not fulfill its contractual obligation to provide the Union notice of the intended change in working conditions and to offer the Union an opportunity to bargain to the extent required by law. The Agency did not except to this finding.