[ v21 p421 ]
The decision of the Authority follows:
21 FLRA No. 58 BUREAU OF RECLAMATION, UPPER COLORADO REGION, COLORADO RIVER STORAGE PROJECT, POWER OPERATIONS OFFICE, U.S. DEPARTMENT OF THE INTERIOR Activity and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL UNION 2159 Union Case No. 0-AR-1055 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator Leo Weiss 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 parties submitted to arbitration the stipulated issue of whether the Union's claim for travel and per diem expenses for union negotiators was an arbitrable matter and, if so, whether Article I, Section 1.8, paragraph 2 of the Basic Agreement is null and void or unenforceable. That provision in part provided that "(e)mployees authorized to represent the Union shall be granted official time, travel and per diem for negotiations . . . and related activities." According to the stipulated facts, the Basic Agreement was approved by the Agency contingent upon the understanding that travel and per diem payments under Article I, Section 1.8 meet certification requirements that the travel is in the primary interest of the Government and in accordance with rulings of the Comptroller General. Upon issuance of the Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983), and relying on Office of Personnel Management (OPM) guidance contained in Federal Personnel Manual Letter 711-162, the Agency declared the language of Article I, Section 1.8 relating to payment of travel and per diem expenses to be null and void. Following this action, the Activity denied the claims of three employees for their travel and per diem expenses in connection with negotiations. The employees filed the grievances which are the subject of this arbitration. The Arbitrator held that the grievances were arbitrable disputes over the interpretation and application of Section 1.8 of the Agreement. On the substantive issue, the Arbitrator rejected the Activity's interpretation of the Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms (BATF), and found that nothing in that decision prohibited agencies and unions from entering into an agreement to reimburse employee union negotiators for travel and per diem expenses. He also found that the guidance provided in FPM Letter 711-162 did not apply to prevent payment of travel and per diem in this case. Consequently, he ruled that Section 1.8 of the Basic Agreement was not null and void but an enforceable provision which the Activity had violated by refusing to pay the grievants for travel and per diem expenses related to attendance at negotiating meetings. He sustained the grievances and directed the Activity to make the grievants whole for any losses they may have suffered. III. FIRST EXCEPTION A. Contentions In its first exception, the Agency contends that the Arbitrator erred by finding that Section 1.8 was "negotiated" into the Basic Agreement, and further argues that the contract language was not the product of bargaining but merely incorporated the existing statutory entitlement. B. Analysis and Conclusions The Authority finds that the Agency in this exception has in no manner shown how the Arbitrator's award, based upon his interpretation of the parties' agreement, is deficient. Instead, the exception constitutes nothing more than disagreement with the Arbitrator's interpretation of the parties' agreement and therefore does not provide any basis for finding the award deficient. E.g., The Philadelphia Regional Office, District Office Operations, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3186, 15 FLRA 211 (1984). Accordingly, this exception must be denied. IV. SECOND EXCEPTION A. Contentions In its second exception, the Agency contends that the Arbitrator failed to recognize that the Agency had constructively disapproved Section 1.8 as written, by making its approval contingent upon the understanding that any travel and per diem payments made pursuant to the provision must meet the certification requirements that travel is in the primary interest of the Government and in accordance with rulings of the Comptroller General. Consequently, the Agency maintains that the Arbitrator improperly resolved an issue relating to the duty to bargain. B. Analysis and Conclusions As to this exception, the Authority finds that contrary to the Agency's assertions, the issue decided by the Arbitrator in this case does not relate to the negotiability of a Union proposal or otherwise relate to the duty to bargain under the Statute. In this regard, the Agency's reliance on Federal Correctional Institution, Texarkana, Texas, Federal Prison System and American Federation of Government Employees, Local 2429, Texarkana, Texas, 19 FLRA No. 26 (1985) is misplaced. The dispute in that case specifically involved management's refusal to approve certain provisions in a supplemental agreement on the ground that they interfered with management's rights under section 7106(a) of the Statute. The Authority held that the award in that case was deficient because the arbitrator, by deciding that the agency had an obligation to bargain over the disputed provisions, had necessarily decided a negotiability dispute, and such disputes can only be resolved by the Authority. In this case, however, the Arbitrator was asked to interpret a provision embodied in a negotiated agreement which had been approved by the agency head. The Authority therefore concludes that this exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement and provides no basis for finding the award deficient. Id.; National Federation of Federal Employees, Local 1418 and U.S. International Communication Agency, Voice of America, 9 FLRA 980 (1982). Accordingly, this exception must be denied. V. THIRD, FOURTH AND FIFTH EXCEPTIONS In its third exception, the Agency alleges that the award is deficient because the Arbitrator erred in his interpretation and application of the Supreme Court's decision in BATF to the facts of this case. The Agency contends that the Arbitrator in making his award overlooked the essential requirement that before travel and per diem expenses can be approved an agency must make a determination that the travel serves the convenience of the agency or is in the primary interest of the Government. The Agency further contends that such a determination must be made on a case-by-case basis and, therefore, the provision in Section 1.8 of the agreement establishing a blanket policy of paying travel and per diem expenses is unenforceable. Similarly, in its fourth and fifth exceptions, the Agency alleges again in essence that the Arbitrator erred in his interpretation of the BATF decision by failing to enforce the requirement that payment of travel and per diem expenses must be certified to be in the interest of the Government. The Agency maintains that Article I, Section 1.8 is unenforceable and therefore the Union's claim is not grievable or arbitrable and, further, the Arbitrator's award requires the performance of an illegal act, i.e., payment of travel and per diem without the required certification. B. Analysis and Conclusion In its decision in BATF, the Supreme Court held that there was no entitlement to travel and per diem expenses under section 7131(a) of the Statute, but the decision did not pertain to circumstances where, as here, an agency was found to have negotiated an agreement provision requiring it to pay such expenses. In this regard, Article I, Section 1.8 of the parties' agreement in this case which the Arbitrator found to be binding on the Agency 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). The proposal in that case provided: The employer agrees to pay the travel expenses incurred by employees while using official time available under the terms of this agreement. In that decision, which was rendered in light of the Supreme Court's decision in BATF, 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. Moreover, the Authority 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 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 related travel expenses. Id. at 6. In this case, the Arbitrator determined that the Agency agreed to pay the travel and per diem expenses related to the labor-management relations activities covered by the official time provision of the parties' agreement. The Authority finds that the Arbitrator's determination effectively constitutes, in terms U.S. Customs Service, a finding that the Agency had exercised its discretion under the Travel Expense Act through negotiations and had thereby determined that the covered activities were sufficiently within the interest of the United States so as to constitute official business. Therefore, the Agency's third, fourth and fifth exceptions also fail to establish that the award is deficient as alleged. Accordingly, these exceptions must also be denied. Additionally, 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 (FTRs). /1/ In this case, the Arbitrator in directing the payment of travel and per diem expenses in connection with the covered activities did not provide for the Agency to determine the propriety of particular travel and per diem expenses under the FTRs. Consequently, the Authority must modify the award to assure that it is consistent with the requirements of the FTRs. VI. DECISION Accordingly, pursuant to section 2425.4 of the Authority's Rules and Regulations and for the reasons stated above, the Agency's exceptions are denied but that portion of the award directing payment of travel and per diem expenses is modified to provide as follows: /2/ The Employer is hereby directed to make the Grievants whole for any losses they may have suffered as a result of its breach of Article 1, Section 1.8 of the Basic Agreement, insofar as consistent with applicable requirements of the Federal Travel Regulations. Issued, Washington, D.C., April 22, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES$ (1) 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). (2) In view of this decision, the Authority finds that it is not necessary to rule on the Union's motion for leave to file a request for reconsideration of the Authority's Order of January 14, 1986, granting the Agency's request for a temporary stay of the Arbitrator's award.