International Brotherhood of Electrical Workers, Local 1688 (Union) and U.S. Army Engineer District, Omaha (Activity) 

 5 FLRA No. 8
 
 LOCAL 1688, INTERNATIONAL
 BROTHERHOOD OF ELECTRICAL
 WORKERS
 Union
 
 and
 
 U.S. ARMY ENGINEER
 DISTRICT, OMAHA
 Activity
 
                                            Case No. 0-AR-74
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR MARTIN CONWAY FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR THE DISPUTE IN THIS MATTER AROSE WHEN THE
 ACTIVITY UNILATERALLY CEASED PROVIDING TRANSPORTATION FOR EMPLOYEES TO
 AND FROM THE BIG BEND POWER PLANT IN SOUTH DAKOTA.  THE PLANT AND THE
 DAM ARE LOCATED 25 TO 35 MILES FROM THE TWO TOWNS WHERE THE MAJORITY OF
 THE EMPLOYEES WORKING AT THE PLANT LIVE AND THE ACTIVITY HAS, SINCE
 1961, PROVIDED TRANSPORTATION FOR EMPLOYEES FROM THESE TWO TOWNS.  IN
 GENERAL, ACCORDING TO THE ARBITRATOR, THE VEHICLES WHICH HAVE BEEN
 ACQUIRED BY THE ACTIVITY TO PROVIDE THIS TRANSPORTATION CONSIST OF "A
 SMALL BUS, A VAN, AND ANOTHER VEHICLE OR TWO IN THE NATURE OF A JEEP OR
 A SIMILAR VEHICLE;  ALL OF WHICH HAD 4-WHEEL DRIVE AND POWER SUFFICIENT
 TO NEGOTIATE THE ROADS FROM THE TOWNS TO THE DAM SITE."
 
    THE ACTIVITY TERMINATED THE TRANSPORTATION PURSUANT TO AN ORDER FROM
 THE OFFICE OF THE CHIEF OF ENGINEERS DATED JUNE 19, 1979.  IT WAS
 CONCLUDED BY THAT OFFICE THAT SUCH TRANSPORTATION WAS NOT ONLY WITHOUT
 AUTHORIZATION, BUT ALSO IN VIOLATION OF FEDERAL LAW.  IT APPEARS THAT
 THE FEDERAL STATUTES PRIMARILY INVOLVED WERE 31 U.S.C. 638A AND 10
 U.S.C. 2632.  SECTION 638A OF TITLE 31 PROVIDES IN RELEVANT PART:
 
    (A) UNLESS SPECIFICALLY AUTHORIZED BY THE APPROPRIATION CONCERNED OR
 OTHER LAW, NO
 
    APPROPRIATION SHALL BE EXPENDED TO PURCHASE OR HIRE PASSENGER MOTOR
 VEHICLES FOR ANY BRANCH OF
 
    THE GOVERNMENT OTHER THAN THOSE FOR THE USE OF THE PRESIDENT OF THE
 UNITED STATES, THE
 
    SECRETARIES TO THE PRESIDENT, OR THE HEADS OF THE EXECUTIVE
 DEPARTMENTS ENUMERATED IN SECTION
 
    101 OF TITLE 5.
 
   *          *          *          *
 
 
    (C) UNLESS OTHERWISE SPECIFICALLY PROVIDED, NO APPROPRIATION
 AVAILABLE FOR ANY DEPARTMENT
 
    SHALL BE EXPENDED--
 
   *          *          *          *
 
 
    (2) FOR THE MAINTENANCE, OPERATION, AND REPAIR OF ANY
 GOVERNMENT-OWNED PASSENGER MOTOR
 
    VEHICLE OR AIRCRAFT NOT USED EXCLUSIVELY FOR OFFICIAL PURPOSES;  AND
 "OFFICIAL PURPOSES" SHALL
 
    NOT INCLUDE THE TRANSPORTATION OF OFFICERS AND EMPLOYEES BETWEEN
 THEIR DOMICILES AND PLACES OF
 
    EMPLOYMENT, EXCEPT IN CASES OF MEDICAL OFFICERS ON OUT-PATIENT
 MEDICAL SERVICE AND EXCEPT IN
 
    CASES OF OFFICERS AND EMPLOYEES ENGAGED IN FIELD WORK THE CHARACTER
 OF WHOSE DUTIES MAKES SUCH
 
    TRANSPORTATION NECESSARY AND THEN ONLY AS TO SUCH LATTER CASES WHEN
 THE SAME IS APPROVED BY
 
    THE HEAD OF THE DEPARTMENT CONCERNED.  . . .
 
    SECTION 2632 OF TITLE 10, AS AMENDED, PROVIDES IN RELEVANT PART:
 
    (A) WHENEVER THE SECRETARY OF A MILITARY DEPARTMENT DETERMINES THAT
 IT IS NECESSARY FOR THE
 
    EFFECTIVE CONDUCT OF THE AFFAIRS OF THAT DEPARTMENT, HE MAY, AT
 REASONABLE RATES OF FARE UNDER
 
    REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE, PROVIDE
 ASSURED AND ADEQUATE
 
    TRANSPORTATION BY MOTOR VEHICLE OR WATER CARRIER--
 
    (1) AMONG PLACES ON ANY MILITARY INSTALLATION (INCLUDING ANY
 SUBINSTALLATION THEREOF) UNDER
 
    THE JURISDICTION OF THAT DEPARTMENT;  AND
 
    (2) TO AND FROM THEIR PLACE OF EMPLOYMENT--
 
    (A) FOR PERSONS ATTACHED TO, OR EMPLOYED IN, THAT DEPARTMENT;  AND
 
    (B) DURING A WAR OR NATIONAL EMERGENCY DECLARED BY THE CONGRESS OR
 THE PRESIDENT, FOR
 
    PERSONS ATTACHED TO, OR EMPLOYED IN, A PRIVATE PLANT THAT IS
 MANUFACTURING MATERIAL FOR THAT
 
    DEPARTMENT.
 
    (B)(1) TRANSPORTATION MAY NOT BE PROVIDED UNDER SUBSECTION (A)(2)
 UNLESS THE SECRETARY
 
    CONCERNED, OR AN OFFICER OF THE DEPARTMENT CONCERNED DESIGNATED BY
 THE SECRETARY, DETERMINES
 
    THAT--
 
    (A) OTHER FACILITIES ARE INADEQUATE AND CANNOT BE MADE ADEQUATE;
 
    (B) A REASONABLE EFFORT HAS BEEN MADE TO INDUCE OPERATORS OF PRIVATE
 FACILITIES TO PROVIDE
 
    THE NECESSARY TRANSPORTATION;  AND
 
    (C) THE SERVICE TO BE FURNISHED WILL MAKE PROPER USE OF
 TRANSPORTATION FACILITIES AND WILL
 
    SUPPLY THE MOST EFFICIENT TRANSPORTATION TO THE PERSONS CONCERNED.
 
   *          *          *          *
 
 
    THE UNION FILED A GRIEVANCE OVER THE TERMINATION OF THE
 TRANSPORTATION, CONTENDING THAT IT WAS A "CONDITION OF EMPLOYMENT"
 RELIED UPON BY EMPLOYEES, THAT IT HAD BECOME AN ESTABLISHED PAST
 PRACTICE, AND THAT OFTEN CONDITIONS ON THE ROAD TO THE PLANT
 NECESSITATED IT.  THE PARTIES WERE UNABLE TO RESOLVE THE DISPUTE AND IT
 WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ISSUES ADDRESSED BY THE ARBITRATOR WERE:
 
    DID THE EMPLOYER'S ACTION IN DISCONTINUING THE PROVISION OF PASSENGER
 VEHICLES FOR
 
    TRANSPORTATION OF EMPLOYEES TO AND FROM THE JOB SITE RESULT IN ANY
 VIOLATION OF ANY OF THE
 
    TERMS AND CONDITIONS OF THE NEGOTIATED AGREEMENT?  IF SO, WHAT SHALL
 THE REMEDY BE?
 
    ALTERNATIVELY:  WAS THE EMPLOYER'S ACTION IN CANCELLING AND REVOKING
 PROVISION OF PASSENGER
 
    VEHICLES FOR THE BENEFIT OF TRANSPORTING EMPLOYEES TO AND FROM
 DOMICILE AREAS TO JOB SITE
 
    APPROPRIATE AND ESSENTIAL WITH RESPECT TO STATUTORY AND REGULATION
 PROHIBITIONS?  IF NOT, WHAT
 
    SHALL THE REMEDY BE?
 
    THE ARBITRATOR FIRST EXAMINED THE QUESTION OF WHETHER THERE WERE ANY
 STATUTORY PROHIBITIONS AGAINST FURNISHING THE TRANSPORTATION.  AS TO THE
 PROVISIONS OF 31 U.S.C. 638A, HE FOUND THAT THE "SPECIFIC AUTHORIZATION"
 REQUIRED BY THAT SECTION OFFERED "NO INSURMOUNTABLE OBSTACLE TO THE
 CONTINUANCE OF THE PROVISION OF (TRANSPORTATION)." IN THIS REGARD HE
 STATED THAT HE "ASSUME(D) THAT APPROPRIATION FOR SUCH VEHICLES HAD BEEN
 MADE, AND EVEN IF IT HASN'T, . . . THE LONG TERM PRACTICE OF PROVIDING
 (THE TRANSPORTATION), ELEVATES THAT CONDITION TO THE STATUS OF A
 'CONDITION OF EMPLOYMENT' . . . " UNDER THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.  AS TO THE PROVISIONS OF 10 U.S.C. 2632, THE
 ARBITRATOR NOTED THAT SECTION PERMITS THE SECRETARY OF A MILITARY
 DEPARTMENT, WITHIN HIS DISCRETION, TO PROVIDE TRANSPORTATION BETWEEN THE
 EMPLOYEE'S DOMICILE AND HIS WORK SITE AT REASONABLE RATES.  HE CONCLUDED
 FROM THE FACTS BEFORE HIM THAT IT WAS NOT "AN UNREASONABLE EXERCISE OF
 THE DISCRETIONARY POWER GRANTED TO THE SECRETARY, AND HENCE TO THE
 FUNCTIONARIES IN THE DEPARTMENT UNDER THE SECRETARY, TO CONTINUE THE
 PROVISION OF SUCH (TRANSPORTATION) WHICH HAS HAD SUCH A LONG HISTORY AND
 FOR SUCH APPARENTLY GOOD REASONS." HE FURTHER CONCLUDED THAT:
 
    (T)HE WHOLE IMPORT OF SECTION 2632 IS TO PROVIDE WHAT APPEAR TO BE
 REASONABLE RESTRICTIONS
 
    ON UNREASONABLE USES OF SUCH (TRANSPORTATION).  I DO NOT FIND ANY
 UNREASONABLE USE HERE OF THE
 
    (TRANSPORTATION) REQUESTED.  MY VIEW OF THE CIRCUMSTANCES FINDS THAT
 THE REQUEST FOR
 
    CONTINUANCE OF SUCH EQUIPMENT IS ABSOLUTELY REASONABLE, GIVEN THE
 CONDITIONS THAT PREVAIL
 
    HERE.
 
    FINDING NO STATUTORY PROHIBITIONS AGAINST FURNISHING THE
 TRANSPORTATION AND DETERMINING THAT THE LONG ESTABLISHED PRACTICE OF
 FURNISHING THE TRANSPORTATION GAVE IT "THE CHARACTER OF A CONTRACT
 BENEFIT," THE ARBITRATOR CONCLUDED THAT THE ACTIVITY HAD VIOLATED
 ARTICLE 2, SECTION D OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT /1/
 BY DISCONTINUING THE TRANSPORTATION.  THE ARBITRATOR THEREFORE MADE THE
 FOLLOWING AWARD:
 
    THE EMPLOYER DID VIOLATE THE CONTRACT PROVISIONS OF ARTICLE 2(D) BY
 UNILATERALLY
 
    DISCONTINUING A LONG ESTABLISHED PRACTICE WHICH TAKES THE CHARACTER
 OF A CONTRACT BENEFIT EVEN
 
    THOUGH NOT EXPRESSLY STATED IN THE CONTRACT, AND THAT SUCH PROVISION
 OF VEHICLES MUST BE
 
    REINSTATED FORTHWITH.
 
    THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 C.F.R. PART
 2425.  THE UNION FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 AGENCY'S EXCEPTION, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S AWARD, IF
 IMPLEMENTED, WOULD VIOLATE LAW.  ACCORDING TO THE AGENCY, THE ARBITRATOR
 IGNORED THE LEGAL REQUIREMENTS OF 10 U.S.C. 2632 BY DIRECTING THE OMAHA
 DISTRICT ENGINEER TO REINSTATE THE TRANSPORTATION.  IN THIS REGARD THE
 AGENCY STATES THAT
 
    (I)F THE DISTRICT ENGINEER (THE "EMPLOYER") WERE TO IMPLEMENT THE
 AWARD BY REINSTATING THE
 
    TRANSPORTATION ARRANGEMENT, HE WOULD VIOLATE THE REQUIREMENTS OF 10
 U.S.C. 2632 THAT, WITHIN
 
    ARMY, ONLY THE SECRETARY OF THE ARMY MAY "PROVIDE" SUCH ARRANGEMENTS.
 . . .  (T)HE ARBITRATOR
 
    DOES NOT DIRECT THE DISTRICT ENGINEER TO REQUEST APPROVAL OF THE
 SECRETARY, AS WAS INITIALLY
 
    SOUGHT AS REMEDIAL ACTION BY THE UNION . . . .  RATHER, THE AWARD
 DIRECTS REINSTATEMENT BY THE
 
    DISTRICT ENGINEER.
 
    THUS, THE AGENCY STATES THAT IT DOES NOT QUESTION THE ARBITRATOR'S
 FINDINGS OF FACT NOR HIS CONCLUSION THAT THE PARTIES' AGREEMENT WAS
 VIOLATED, BUT ONLY THAT HIS AWARD, IF IMPLEMENTED, WOULD BE CONTRARY TO
 LAW.  FURTHER, THE AGENCY ASSERTS THAT 31 U.S.C. 638A PROHIBITS THE
 EXPENDITURE OF ANY APPROPRIATION FOR PASSENGER MOTOR VEHICLES UNLESS
 SPECIFICALLY AUTHORIZED, AND THE DISTRICT ENGINEER CANNOT MAKE SUCH AN
 AUTHORIZATION.
 
    IN ITS OPPOSITION TO THE AGENCY'S EXCEPTION, THE UNION ARGUES THAT
 THE STATUTORY PROVISIONS CITED BY THE AGENCY, I.E., 10 U.S.C. 2632 AND
 31 U.S.C. 638A, DO SPECIFICALLY PROVIDE THE AUTHORITY FOR THE ACTIVITY
 TO PROVIDE THE TRANSPORTATION DIRECTED BY THE ARBITRATOR IN THIS CASE
 AND THAT, IN ANY EVENT, APPROVAL FOR THE TRANSPORTATION HAS COME THROUGH
 APPROVAL OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT WHICH THE
 ARBITRATOR FOUND VIOLATED.
 
    THE AGENCY'S EXCEPTION, THAT THE AWARD IS CONTRARY TO LAW, STATES A
 GROUND ON WHICH THE AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION
 7122(A) OF THE STATUTE.  UNITED STATES ARMY MISSILE MATERIEL READINESS
 COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 1858, AFL-CIO, 2 FLRA NO. 60(1980).  FOR THE REASONS THAT FOLLOW,
 WE FIND THAT THE ARBITRATOR'S AWARD IN THIS CASE IS DEFICIENT BECAUSE IT
 IS CONTRARY TO 10 U.S.C. 2632 AND THAT IT MUST THEREFORE BE MODIFIED
 ACCORDINGLY.
 
    SECTION 2632 OF TITLE 10 PROVIDES THAT THE SECRETARY OF A MILITARY
 DEPARTMENT MAY PROVIDE, AT REASONABLE RATES OF FARE, TRANSPORTATION TO
 AND FROM THE EMPLOYMENT SITE FOR PERSONS EMPLOYED IN THAT DEPARTMENT
 WHEN IT HAS BEEN DETERMINED THAT:  (A) OTHER FACILITIES ARE INADEQUATE;
 (B) REASONABLE EFFORTS HAVE BEEN MADE TO UTILIZE PRIVATE FACILITIES;
 AND (C) THE SERVICES FURNISHED WILL MAKE PROPER AND EFFECTIVE USE OF
 TRANSPORTATION FACILITIES.  IN THIS CASE, THE ARBITRATOR RECOGNIZED THAT
 APPROVAL FOR THE PURCHASE OF MOTOR VEHICLES FOR THE TRANSPORTATION HAD
 BEEN GIVEN OVER THE YEARS, AND FOUND THAT BECAUSE OF THE CONDITIONS IN
 EXISTENCE AT THE POWER PLANT AND ON THE ROAD THERETO IT WOULD NOT BE AN
 "UNREASONABLE EXERCISE OF THE DISCRETIONARY POWER GRANTED TO THE
 SECRETARY" UNDER SECTION 2632 TO CONTINUE THE TRANSPORTATION.  HOWEVER,
 AT NO POINT DID HE CLEARLY ESTABLISH THAT THE SECRETARY HAD GIVEN THE
 REQUISITE PERMISSION FOR THE TRANSPORTATION.  MOREOVER, CONTRARY TO THE
 UNION'S ASSERTIONS, APPROVAL BY THE SECRETARY OF THE ARMY OF THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT WOULD NOT IN THE CIRCUMSTANCES
 OF THIS CASE APPEAR TO CONSTITUTE THE SPECIFIC APPROVAL CONTEMPLATED BY
 SECTION 2632 FOR PROVIDING SUCH TRANSPORTATION.  /3/
 
    THEREFORE, TO THE EXTENT THAT THE ARBITRATOR'S AWARD DIRECTS THE
 ACTIVITY TO REINSTITUTE THE TRANSPORTATION WITHOUT FIRST REQUESTING
 AUTHORIZATION FROM THE SECRETARY OF THE ARMY, IT IS CONTRARY TO 10
 U.S.C. 2632.  ACCORDINGLY, THE AWARD IS HEREBY MODIFIED BY STRIKING
 THEREFROM THE WORDS "AND THAT SUCH PROVISION OF VEHICLES MUST BE
 REINSTATED FORTHWITH" AND SUBSTITUTING THEREFOR THE WORDS "AND THE
 ACTIVITY IS DIRECTED TO SEEK APPROPRIATE APPROVAL AND AUTHORIZATION FOR
 SUCH PROVISION OF VEHICLES." /4/ BEING SO MODIFIED, THE AWARD IS
 SUSTAINED.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY MODIFY THE ARBITRATOR'S
 AWARD, AND AS SO MODIFIED, SUSTAIN IT.  /5/
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ARTICLE 2, SECTION D PROVIDES:
 
    POLICIES IN EFFECT AT THE TIME OF THE SIGNING OF THIS AGREEMENT, AND
 NOT SPECIFICALLY NOTED
 
    HEREIN, MAY BE CHANGED AFTER GOOD FAITH NEGOTIATION.
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /3/ IT IS NOTED THAT THE PROVISION OF THE PARTIES' AGREEMENT WHICH
 THE ARBITRATOR FOUND HAD BEEN VIOLATED DEALS WITH CHANGING POLICIES ONLY
 AFTER GOOD FAITH NEGOTIATIONS AND DOES NOT DEAL SPECIFICALLY WITH
 PROVIDING THE TRANSPORTATION SOUGHT BY THE UNION.
 
    /4/ WHILE THE AGENCY ALSO ALLEGES THAT IMPLEMENTATION OF THE AWARD
 WOULD VIOLATE 31 U.S.C. 638A, SUCH ALLEGATION GOES TO THE AUTHORITY OF
 THE DISTRICT ENGINEER TO IMPLEMENT SUCH AN AWARD, A DEFECT CURED BY THE
 MODIFICATION HEREIN.  CONTRARY TO THE UNION'S ASSERTIONS, HOWEVER,
 NOTHING IN 31 U.S.C. 638A IN AND OF ITSELF WOULD PROVIDE THE REQUISITE
 AUTHORITY, IN THE CIRCUMSTANCES OF THIS CASE, FOR THE ACTIVITY TO
 CONTINUE THE TRANSPORTATION WITHOUT APPROPRIATE AUTHORIZATION.
 
    /5/ IN CONJUNCTION WITH ITS EXCEPTION, THE AGENCY FILED A REQUEST FOR
 A STAY OF THE ARBITRATOR'S AWARD PURSUANT TO SECTION 2429.8 OF THE
 AUTHORITY'S RULES AND REGULATIONS.  AS A RESULT OF THE DECISION AND
 ACTION TAKEN HEREIN, THE AGENCY'S REQUEST FOR A STAY IS HEREBY DENIED.