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The decision of the Authority follows:
28 FLRA NO. 128 INTERNAL REVENUE SERVICE, MIDWEST REGION Activity and NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 10 Union Case No. 0-AR-1306
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Patrick A. McDonald filed by the Activity under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition.
For the reasons discussed below, we deny the Activity's exceptions.
II. Background and Arbitrator's Award
The grievant in this case is employed in the Agency's Chicago office as an appeals officer (GS-920-13), a position which does not require a law degree and bar admission. Prior to taking a bar review course in preparation for the bar examination of the State of Illinois, the grievant submitted to his supervisor a training certification form requesting reimbursement for the cost of the bar review course of $690. When his request was denied, the grievant filed a grievance protesting the denial which was submitted to arbitration.
The Arbitrator stated the issue to be whether the denial of the grievant's request violated the parties' national agreement. The Arbitrator noted that the parties specifically provided in Article 30, Training, Section 4A of the national agreement that employees will be reimbursed for those portions of "bar review courses that are job related" consistent with the criteria set forth in Section 4B. After hearing the testimony of the creator of the bar review course and personally reviewing the subjects covered in the course, the Arbitrator determined that one-half or 50 percent of the course was job related in that it was directly related to the position of appeals officer and would enable the grievant to increase his ability to perform his current duties. As to the six criteria of section 4B, the Arbitrator either specifically found that they had been met or that they were not disputed by the Activity. The Arbitrator further found that this expense was not personal to the grievant because bar admission is not a requirement for the position of appeals officer. The Arbitrator also rejected the Activity's contention that reimbursement of any of the course cost was contrary to the Government Employees Training Act (the Training Act), 5 U.S.C. 4101-4118. He determined that Article 30, Section 4 of the national agreement had been negotiated consistent with the requirements of the Training Act and that consequently, reimbursement of course expenses under the agreement are authorized by the Training Act. Accordingly, as his award, he ordered the Activity to reimburse the grievant $345 of the expense of the bar review course.
In its exceptions, the Activity contends that the award is contrary to the Training Act in several respects and to decisions of the Comptroller General on the reimbursement of expenses of bar review courses. specifically, the Activity argues that the portion of the bar review course for which reimbursement was ordered does not meet the definition of training in 5 U.S.C. 4101(4) for which payment or reimbursement by an agency is authorized. The Activity acknowledges that the Comptroller General ruled in B-187525 (Oct. 15, 1976) that the cost of a bar review course was payable under the Training Act as properly constituting training. However, the Activity maintains that subsequently the Comptroller General described that case as a "narrow exception" to the general rule that expenses for bar review courses are personal to the employee and not payable under the Training Act. For example, 61 Comp. Gen. 357 (1982). The Activity argues that this case does not fall within the narrow exception.
The Activity also asserts that the Arbitrator erroneously concluded that Article 30, Section 4 of the national agreement had been negotiated consistent with the Training Act and that payments in accordance with the agreement are authorized by the Act. The Activity maintains that the Arbitrator interpreted the agreement as constituting a blanket determination by the Agency that job-related portions of bar review courses which met the additional criteria of the agreement were properly payable under the Training Act. The Activity argues that such a blanket determination is not permissible under the Training Act which instead requires a case-by-case evaluation of training requests for conformance with the requirements of the Act. Thus, the Activity claims that the award is deficient because the ordered reimbursement was based on this blanket determination without specific consideration of the Training Act in relation to the grievant's request.
Finally, the Activity maintains that under the Training Act and the national agreement, management decides whether training is related to an employee's position and necessary for the performance of an employee's duties. Consequently, the Activity argues that the award is deficient because the Arbitrator improperly substituted his judgment, that a portion of the course was sufficiently job-related to be reimbursable, for management's judgment that no portion of the course was directly related to the grievant's position of appeals officer or would increase his ability to perform the duties of his position.
B. Analysis and Conclusions
We conclude that the Activity's exceptions fail to establish that the award is in any respect contrary to the Government Employees Training Act or decisions of the Comptroller General.
In our view, the Arbitrator has merely interpreted and applied the parties' national agreement to the disputed situation of the grievant's request for reimbursement of the expenses of his bar review course. in contending that the award is deficient, the Activity is essentially disagreeing with the Arbitrator's interpretation and application of the agreement. In particular, the Activity is disagreeing with the Arbitrator's interpretation of the agreement as having been negotiated consistent with the Training Act and his ruling that reimbursement of bar review course expenses under the terms of Article 30, Section 4 of the national agreement were consequently authorized by the Training Act. in its exceptions the Activity provides no basis for finding this interpretation and application of the agreement to be contrary to the Training Act.
The Activity fails to establish that reimbursement of that portion of the grievant's bar review course that was directly related to the grievant's position of appeals officer and that would enable the grievant to increase his ability to perform his current job is contrary to the Training Act or decisions of the Comptroller General. To the contrary, the case cited by the Activity, B-187525 (Oct. 15, 1976), fully supports the Arbitrator's award. In that case the Comptroller General held that the costs of a bar review course are properly payable under 5 U.S.C. 4101(4) when the course is directly related to the performance by the employee of the employee's official duties in order to increase the knowledge, proficiency, ability, skill, and qualifications of the employee in the performance of official duties and when the bar review course is not necessary to qualify for Federal employment. These are precisely the findings made by the Arbitrator in awarding payment of a portion of course expenses to the grievant. In addition, the Activity fails to substantiate that under the Training Act, the determination of whether a bar review course is job-related is an unreviewable determination that must be made by management alone. Consequently, the Activity's assertions that the Arbitrator substituted his judgment for that of management on whether any portion of the course was job-related provide no basis for finding the award deficient.
The Activity further fails to establish that the award is deficient because Article 30, Section 4 cannot constitute a blanket determination that bar review courses which are job-related are properly payable under the Training Act. The Authority has denied exceptions that awards requiring the payment under collective bargaining agreements of travel and per diem expenses to employees on official time were contrary to the Travel Expense Act because there were no agency head determinations that the employees were traveling on official business and that the travel was in the primary interest of the Government. For example, General Services Administration and American Federation of Government Employees, AFL - CIO. Council 236, 21 FLRA No. 24 (1986). The Authority found that the Travel Expense 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. The Authority further found that a finding by an arbitrator that the expenses were payable under the agreement effectively constituted a finding that such discretion had been exercised through negotiations.
In this case, the Activity has not established that an agency head's discretion to determine that the expenses of a bar review course which are job-related and otherwise meet the requirements of law are payable under the Training Act cannot be exercised through negotiations. Thus, we view the Arbitrator's ruling that Article 30 of the national agreement was negotiated consistent with the Training Act to effectively constitute a finding by the Arbitrator that management had exercised this discretion under the Act.
In short, the Activity's exceptions constitute disagreement with the Arbitrator's interpretation and application of the parties' national agreement and fail to establish that such interpretation and application is contrary to the Government Employees Training Act. Consequently, no basis is provided for finding the award deficient as alleged.
Accordingly, the Activity's exceptions are denied.
Issued, Washington, D.C. September 16, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY