21:0384(49)AR - NTEU and NTEU Chapter 224 and Office of Hearings and Appeals, SSA -- 1986 FLRAdec AR
[ v21 p384 ]
The decision of the Authority follows:
21 FLRA No. 49 NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 224 Union and OFFICE OF HEARINGS AND APPEALS, SOCIAL SECURITY ADMINISTRATION Activity Case No. 0-AR-875 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator Bernard Cushman filed by the Activity 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 Union filed a grievance in this case alleging that the Activity violated Article 22, Section 4 of the parties' collective bargaining agreement by refusing to pay the travel and per diem expenses of the chapter president and chief steward for attendance at a one-day negotiation session in Arlington, Virginia, held at the request of the Activity. The Arbitrator noted that Article 22 of the parties' agreement pertinently provides that "(t)he Employer shall pay travel and per diem costs incurred by the employee negotiators unless a statute or court order mandates otherwise." The Arbitrator further noted that the president had claimed expenses of $663.60 and the steward had claimed expenses of $75.02 and that the Activity had denied the claims. In denying the claims the Activity took the position that after the U.S. Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983), payment of travel and per diem expenses was not required under the parties' agreement provision and that under the Travel Expense Act, 5 U.S.C. Section 5701 et seq., payment was precluded because there had been no specific agency head certification that the travel served the convenience of the agency or was otherwise in the primary interest of the Government. The Arbitrator, however, rejected the Activity's position. He found that the requirement of the parties' agreement to pay travel and per diem expenses was unaffected by the decision in BATF. He further found that payment of the expenses was not precluded by the lack of a specific agency head certification that the disputed travel served the convenience of the agency. In this regard he essentially concluded that consistent with the decision in BATF, the parties' agreement constituted the determination by the Activity that travel attendant to representing an exclusive representative in negotiations is sufficiently within the interest of the United States so as to constitute official business. Accordingly, as his award, the Arbitrator sustained the grievance and, in doing so, in effect found that management was obligated to pay the grievants' travel and per diem expenses for attendance at the negotiation session in question. III. EXCEPTION As its exception the Activity contends that the award is contrary to law, specifically, the Travel Expense Act. In support of this exception, the Activity essentially repeats its position before the Arbitrator by arguing that payment of the travel and per diem expenses is precluded by the Travel Expense Act because there had not been a specific agency head certification that the travel was performed in the primary interest of the Government. IV. ANALYSIS AND CONCLUSIONS The Authority finds that the Agency's exception fails to establish that the Arbitrator's award is contrary to the Travel Expense Act. The agreement provision enforced by the Arbitrator is essentially the same as the proposal found by the Authority to be within the duty to bargain in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986). In that decision the Authority pertinently ruled that provisions of the Travel Expense Act do not prohibit an agency from exercising through negotiations the discretion which it possesses to determine whether travel attendant to labor-management relations activities is sufficiently within the interest of the United States so as to constitute official business for purposes of reimbursement of appropriate travel expenses. Id. at 6. As has been noted, the Arbitrator in this case similarly found that the parties' agreement provision as to the payment of travel and per diem expenses constituted the determination by the Activity that travel attendant to representing an exclusive representative in negotiations is sufficiently within the interest of the United States so as to constitute official business. Thus, in view of the Authority's decision in U.S. Customs Service, no basis is provided for finding the award deficient as alleged by the Activity. In finding the proposal in U.S. Customs Service to be within the duty to bargain, however, the Authority concluded that the proposal would not require the agency to authorize the payment of expenses which do not comport with regulatory requirements and restrictions. Id. at 6. The Authority based its conclusion on the union's acknowledgment that payment of any travel expenses flowing from the proposal, if agreed upon by the parties, would be subject to the provisions of the Federal Travel Regulations (FTRs). /*/ In this case, the Arbitrator in directing that the claimants are entitled to payments for travel and per diem expenses for attendance at the negotiation session has not expressly addressed whether the claimants are to be authorized and paid the full amount of their respective claims and has not expressly provided for agency determinations regarding the propriety under the FTRs of those respective claims. Consequently, the Authority must modify the award to assure that it is consistent with the requirements of the FTRs. V. DECISION Accordingly, pursuant to section 2425.4 of the Authority's Rules and Regulations and for the reasons stated above, the award is modified to provide as follows: The grievance is sustained. The claimants are entitled to payment of their travel and per diem expenses for attendance at the negotiation session in question insofar as consistent with applicable requirements of the Federal Travel Regulations. Issued, Washington, D.C. April 21, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES (*) The FTRs, 41 CFR part 101-7, have been held to be Government-wide rules or regulations within the meaning of the Statute. National Federation of Federal Employees, Local 29 and U.S. Army Engineer District, Kansas City, Missouri, 13 FLRA 23, 24 (1983).