21:0392(51)AR - SSA and AFGE -- 1986 FLRAdec AR
[ v21 p392 ]
21:0392(51)AR
The decision of the Authority follows:
21 FLRA No. 51
SOCIAL SECURITY ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union
Case No. 0-AR-994
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Arthur Eliot Berkeley filed by the Agency 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 issues presented to the Arbitrator concerned, among other things,
whether the Agency violated certain provisions of the parties' national
agreement when it terminated the payment of travel and per diem expenses
of employees who served as union negotiators in bargaining sessions.
The Arbitrator noted that Article 4, section 4 of the agreement provided
that travel and per diem would be authorized for union negotiators as
required by the Federal Service Labor-Management Relations Statute. In
interpreting this provision, the Arbitrator considered the decision of
the U.S. Supreme Court in Bureau of Alcohol, Tobacco and Firearms v.
FLRA, 464 U.S. 89 (1983), and determined that nothing in BATF precluded
the Agency from agreeing to the payment of the travel and per diem
expenses of union negotiators. Thus, he found that the Agency had
bargained over and agreed to pay travel and per diem and that the Agency
therefore was bound by its agreement. Consequently, the Arbitrator
determined that the Agency violated Article 4, section 4 of the
agreement and as a remedy ordered the Agency to reimburse union
negotiators for travel and per diem expenses incurred retroactive to the
date the Agency ceased making such payments. The Arbitrator also
retained jurisdiction over implementation of the award for the limited
purpose of resolving any reimbursement questions.
III. FIRST, SECOND, THIRD, AND FOURTH EXCEPTIONS
A. Contentions
In its initial exceptions, the Agency contends that the award is
incomplete; that the award fails to draw its essence from the
agreement; that the award is based on a nonfact; and that the
Arbitrator exceeded his authority by retaining jurisdiction during
implementation of the award.
B. Analysis and Conclusions
The Authority concludes that these exceptions fail to establish that
the award is deficient on any basis as contended by the Agency. The
first three exceptions constitute nothing more than disagreement with
the Arbitrator's interpretation and application of the collective
bargaining agreement. The Agency in these exceptions is clearly seeking
to have its own interpretation of the parties' agreement substituted for
that of the Arbitrator and the Authority has held that such exceptions
provide no basis for finding an award deficient. National Federation of
Federal Employees, Local 1418 and U.S. International Communication
Agency, Voice of America, 9 FLRA 980 (1982). Similarly, the Agency
fails to establish that the retention of jurisdiction by the Arbitrator
for the limited purpose of resolving any reimbursement questions in
implementation of the award is deficient. See American Federation of
Government Employees, AFL-CIO, National Immigration and Naturalization
Service Council and U.S. Immigration and Naturalization Service, 15 FLRA
355 (1984). Accordingly, these exceptions must be denied.
IV. FINAL EXCEPTION
A. Contentions
In its final exception, the Agency contends that the award is
contrary to applicable law. The Agency mentions in this regard, section
7131 of the Statute and applicable travel statutes.
B. Analysis and Conclusions
The Authority concludes that this exception fails to establish that
the award is deficient as alleged by the Agency. In National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service, 21
FLRA No. 2 (1986), the Authority found the following proposal to be
within the duty to bargain:
The employer agrees to pay the travel expenses incurred by
employees while using official time available under the terms of
this agreement.
In finding the proposal to be within the duty to bargain, the
Authority stated that the Statute is silent on whether travel expenses
incurred in the conduct of labor-management relations activities are
payable from Federal funds. Id. at 3. The Authority concludes that the
Arbitrator's interpretation of the parties' agreement in this case to
find management's termination of the payment of travel and per diem
expenses constituted a violation of the agreement is not contrary to
section 7131 of the Statute.
Moreover, the Authority also ruled in U.S. Customs Service that the
proposal in dispute was not inconsistent with the Travel Expense Act, 5
U.S.C. Section 5701 et seq., because that Act does not prohibit an
agency from exercising, through negotiations, its discretion to
determine whether travel related 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 the
travel expenses. Id. at 6. The Authority similarly concludes that the
Arbitrator's award in this case is not contrary to the Travel Expense
Act. The Arbitrator ruled that the Agency agreed in the collective
bargaining agreement to pay the travel and per diem expenses of
employees serving as union negotiators. The Authority finds that the
Arbitrator's interpretation of the agreement effectively constitutes, in
terms of U.S. Customs Service, a determination under the agreement that
the representational activities involved were sufficiently within the
interest of the United States so as to constitute official business.
However, in finding the proposal in U.S. Customs Service to be within
the duty to bargain, the Authority concluded that the proposal would not
require the agency to authorize the payment of expenses which did not
comport with regulatory requirements and restrictions. Id. at 6. The
Authority based its conclusion on the union's acknowledgment that the
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. /*/ In this case, the Arbitrator, in directing the
reimbursement of union negotiators for travel and per diem expenses
retroactive to the date the Agency ceased making such payments, has not
expressly provided for agency determinations regarding the propriety
under the FTRs of those expenses. 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 Agency's first four
exceptions are denied and that portion of the award directing the
reimbursement of travel and per diem expenses is modified to provide as
follows:
Due to the violation of the National Agreement found above, the
Agency shall reimburse, insofar as consistent with applicable
requirements of the Federal Travel Regulations, union negotiators
for travel and per diem expenses retroactive to the date the
Agency ceased making such payments and shall pay same pursuant to
the agreed upon contract language.
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).