21:0086(17)AR - Colorado River Storage Project, Bureau of Reclamation, Interior and IBEW Local 2159 -- 1986 FLRAdec AR
[ v21 p86 ]
21:0086(17)AR
The decision of the Authority follows:
21 FLRA No. 17
COLORADO RIVER STORAGE PROJECT,
BUREAU OF RECLAMATION,
U.S. DEPARTMENT OF THE INTERIOR
Activity
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 2159
Union
Case No 0-AR-495
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the interest
arbitration award of Arbitrator William E. Rentfro filed by the Union
under section 7122(a) of the Federal Service Labor-Management Relations
Statute and part 2425 of the Authority's Rules and Regulations. /*/
II. BACKGROUND AND ARBITRATOR'S AWARD
The dispute before the Arbitrator concerned, among other things, the
negotiation impasse of the parties over what modification, if any,
should be made in the grievance procedures and what procedures should be
followed by the parties in effecting final approval of agreements
negotiated at the local level. Pursuant to the provisions of the
parties' general agreement approved by the Federal Services Impasses
Panel, the impasse was referred to interest arbitration for resolution.
With respect to the grievance procedures, the Arbitrator noted that the
Union had proposed a change to provide travel and per diem expenses for
the grievant, witnesses, and representatives while presenting a
grievance. In terms of the proposal, the Arbitrator observed that
traditionally, the risk or cost in processing a grievance has been borne
by each party. He concluded that if each party pays its own way in
pursuing a grievance, the stakes are more equitable and the parties are
encouraged to settle the grievance at an early stage without resort to
arbitration. Accordingly, as his award in this respect, the Arbitrator
determined not to incorporate this proposal into the collective
bargaining agreement.
With respect to the approval procedure, the Arbitrator noted that the
Activity had proposed several amendments and that the Union had objected
to the proposals because they were not within the mandatory duty to
bargain and therefore were not properly before the Arbitrator. The
Arbitrator agreed with the Union's characterization and concluded that
the proposed changes were not appropriate amendments to the approval
procedure as contained in the existing agreement. Accordingly, as his
award in this respect, the Arbitrator determined not to change the
approval procedure of the existing agreement. However, because of the
expressed concerns of the Activity, the Arbitrator suggested that a
clarification of the existing agreement might satisfy those concerns.
Thus, he suggested a clarification of the existing language and proposed
for consideration by the parties certain additional language to further
clarify the intent of the existing agreement.
The Union has filed exceptions to the Arbitrator's resolution of both
of these impasses.
III. FIRST EXCEPTION
A. Contentions
In its first exception the Union contends that the Arbitrator's
resolution of the impasse over grievance procedures by determining not
to include a provision for travel and per diem is deficient as contrary
to law and contrary to the evidence. In support of this exception, the
Union primarily argues that the refusal to provide for travel and per
diem is contrary to section 7131(d) of the Statute and ignores the
evidence showing the hardships on employees of grievances and the
evidence showing that it is not traditional in the Federal sector for
each side to pay its own costs.
B. Analysis and Conclusion
The Authority finds that the Union fails to establish that the award
is deficient as alleged. Contrary to the argument of the Union that the
refusal to provide for travel and per diem is contrary to section
7131(d), the Authority stated in National Treasury Employees Union and
Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986),
that both the Statute and the legislative history are silent on the
payment from Federal funds of travel expenses incurred in the conduct of
labor-management relations activities, which would include in terms of
this case the processing of grievances. Id. at 3. Moreover, the
Authority noted in Customs Service that the U.S. Supreme Court, in
Bureau of Alcohol, Tobacco and Firearms, 464 U.S. 89 (1983), had
rejected the argument that employees on official time were entitled
under law to travel and per diem expenses. In reaching its decision on
remand in the Customs Service case, in the light of the Supreme Court's
decision in BATF, the Authority concluded that the union's proposal
seeking payment of travel and per diem expenses incurred by employees on
official time was within the agency's duty to bargain under the Statute.
However, the Authority further concluded that while the agency was
obligated to bargain in good faith over the disputed proposal it was
under no obligation to agree to the union's formulation. Customs
Service, at 8-9. The Authority therefore finds in this case that the
Union's position that it was entitled as a matter of law to have its
proposal for the payment of travel and per diem expenses included in the
parties' agreement is without merit. The Authority concludes that the
Arbitrator's determination not to require that the Union's proposal be
included in the agreement is not contrary to section 7131(d) of the
Statute as alleged by the Union. Similarly, the Union's contention that
the award is contrary to the evidence is nothing more than disagreement
with the Arbitrator's evaluation of the evidence and with his reasoning
and conclusions in reaching his determination not to incorporate the
Union's proposal into the agreement. Consequently, this contention
provides no basis for finding the award deficient. See, e.g., American
Federation of Government Employees, Council 236 and General Services
Administration, National Capital Region, 12 FLRA 236 (1983).
IV. SECOND EXCEPTION
A. Contentions
In its second exception the Union contends that the Arbitrator's
resolution of the impasse over the approval procedure is contrary to law
and contrary to the evidence.
B. Analysis and Conclusion
The Authority finds that the Union fails to establish that the award
is deficient as alleged. In support of this exception the Union does
not argue that the Arbitrator's determination not to change the existing
agreement is deficient or that the approval provision of the existing
agreement is contrary to law. Instead, the Union only argues that the
Arbitrator's suggested clarification of the existing language and his
proposal of additional language for consideration by the parties, which
the Union concedes is not mandated to be incorporated into the
agreement, are deficient. Consequently, because this exception does not
address the award, which as noted resolved the impasse in favor of the
Union by ruling not to change the approval procedure of the existing
agreement, no basis is provided for finding the award deficient.
V. DECISION
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., March 20, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) Contrary to the argument of the Agency that section 7122(a) of
the Statute and part 2425 of the Authority's Rules do not apply to
interest arbitration awards, the Authority has specifically confirmed
its jurisdiction to resolve exceptions to interest arbitration awards.
Department of Housing and Urban Development and American Federation of
Government Employees, Local 476, AFL-CIO, 18 FLRA No. 95 (1985); Patent
and Trademark Office and Patent Office Professional Association, 15 FLRA
990 (1984).
ORDER DENYING REQUEST FOR CLARIFICATION
This matter is before the Authority on a request filed by the
Department of the Air Force (the Agency) seeking clarification of the
Authority's decision of June 21, 1985 (18 FLRA No. 81). In that
decision, on exceptions filed by the Agency, the Authority set aside the
Arbitrator's interest arbitration award directing the parties to include
a provision in their collective bargaining agreement authorizing 100
percent official time for certain Union representatives. In its request
for clarification, the Agency asks whether the Authority set aside the
Arbitrator's resolution of the parties' entire negotiation impasse that
was before him or only that portion excepted to by the Agency, i.e., the
portion dealing with full-time union representatives, and whether all
other portions of his award remain in effect.
As set forth in the Authority's decision, the entire dispute before
the Arbitrator concerned an impasse which arose during the parties'
negotiation of a new Master Labor Agreement. The Federal Service
Impasses Panel had directed that the impasse be referred to
mediation-arbitration for resolution. Negotiations under the
Arbitrator's direction apparently produced agreement on all issues
except a Union proposal that 100 percent official time be authorized for
certain Union representatives. Before the Arbitrator, the Agency
contended, as it had earlier, that the Union's proposal was not within
the duty to bargain under the Federal Service Labor-Management Relations
Statute.
In its decision, the Authority concluded that the Agency's allegation
raised a negotiability issue under section 7117(c)(1) of the Statute and
that by deciding that the parties' agreement should contain the disputed
provision, the Arbitrator had determined that the Agency had an
obligation under the Statute to bargain on the matter, despite its
allegation to the contrary. Under established Authority precedent, the
Arbitrator was without authority to decide such a negotiability issue
arising under section 7117(c)(1) since, as required by section
7105(a)(2)(E), such issues may only be resolved by the Authority.
Accordingly, the Authority set aside the Arbitrator's award deciding the
negotiability issue as contrary to section 7105(a)(2)(E).
The Authority concludes that the Agency's request for clarification
must be denied. Thus, without passing upon whether the Authority's
Rules and Regulations provide for the filing of such requests, the
Authority finds that clarification is not warranted in this case. As
indicated above, the Authority clearly set aside only that portion of
the Arbitrator's resolution of the parties' dispute that was before the
Authority on exceptions filed by the Agency, i.e., the interest
arbitration award directing the parties to include in their agreement
the disputed provision authorizing 100 percent official time for certain
Union representatives. The Authority did not address any other aspect
of the parties' entire dispute or the effect of the decision on such
other aspects or on other proceedings in the dispute.
Accordingly, since the decision appears clear in that regard, the
Agency's request for clarification is denied.
Issued, Washington, D.C., March 11, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY