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51:0541(48)AR - - NAGE Local R12-33 and Navy, Naval Air Warfare Division, Point Mugu, CA - - 1995 FLRAdec AR - - v51 p541

[ v51 p541 ]
The decision of the Authority follows:

51 FLRA No. 48





LOCAL R12-33











November 30, 1995


Before the Authority: Phyllis N. Segal, Chair and Tony Armendariz, Member

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Philip Kienast filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.

The Arbitrator denied a grievance seeking per diem payments for expenses incurred while on temporary duty assignments.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Arbitrator's Award

The grievant, a firefighter permanently assigned to a worksite on Saint Nicholas Island (SNI), California, was on several occasions assigned temporary duty to a worksite at Point Mugu, California. The Agency denied the grievant per diem payments on the ground that he did not incur additional subsistence expenses while on the temporary assignments.

The Arbitrator determined that under the Department of Defense Civilian Personnel Joint Travel Regulations, Chapter C4552 (JTR, Chapter C4552),(1) a "temporary duty assignment must necessitate additional subsistence expenses, not simply make additional expenses possible." Award at 4. The Arbitrator noted that the Agency makes cooking facilities available at both the SNI and the Point Mugu work sites and that the grievant normally prepares his meals in the cooking facilities at his permanent worksite on SNI. The Arbitrator concluded that, in the absence of evidence that the grievant was denied the opportunity to bring food for meal preparation from SNI to Point Mugu, the grievant had not incurred subsistence expenses "because of the temporary duty assignments in question." Id. Accordingly, the Arbitrator denied the grievance.

III. Exceptions

The Union contends that the award fails to draw its essence from the parties' collective bargaining agreement(2) and is contrary to regulation. The Union asserts that the Arbitrator erred in finding that, in order to be entitled to per diem under JTR, Chapter C4552, subsistence expenses incurred must have been necessitated by the temporary duty assignments. The Union maintains that the JTR provision requires only that subsistence expenses be incurred.

IV. Analysis and Conclusions

A. JTR, Chapter C4552 Governs the Dispute

An arbitration award that conflicts with a rule or regulation that governs the matter in dispute will be found deficient under section 7122(a)(1) of the Statute. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 192 (1990) (Fort Campbell). A rule or regulation governs the matter in dispute when it applies to the matter in dispute and there is no applicable provision of the collective bargaining agreement. Id. at 195.

We find that JTR, Chapter C4552 governs the matters raised in the exceptions because that provision applies to the determination of when per diem may be authorized and there is no applicable provision in the collective bargaining agreement.(3) Fort Campbell, 37 FLRA at 195-96. In so concluding, we reject the Union's contention that Article 29, Section 7 of the agreement provides the dispositive criteria for determining per diem eligibility. Rather, that agreement provision concerns only the criteria for determining when an employee is in travel status, which is not a sufficient basis, without more, for the payment of per diem for subsistence expenses. In the circumstances of this case, that basis is provided by JTR, Chapter C4552.(4)

B. The Award Is Not Contrary To Regulation

A party contending before the Authority that an award is deficient because it is contrary to an agency rule or regulation bears the burden of demonstrating that the award is inconsistent with the plain wording of the regulation or is otherwise impermissible. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1056-57 (1991).

The Union has not demonstrated that the award is inconsistent with the plain wording of JTR, Chapter C4552 or is otherwise impermissible. That provision expressly limits the authorization of per diem to subsistence expenses that are "additional" and incurred "because of" the temporary duty assignment. Thus, pursuant to the terms of the regulation, it must be shown that the employee has incurred subsistence expenses that would not have been incurred had the employee not been on a temporary duty assignment. The Arbitrator's interpretation of the regulation--that the assignment "must necessitate additional subsistence expenses"--is wholly consistent with this plain meaning. Award at 4. Cf. Comp. Gen. No. B-198887 (Sept. 21, 1981) (unpublished) (in addressing a different, but comparable, JTR provision, the Comptroller General denied payment of subsistence expenses to a firefighter on the ground that he had not incurred additional expenses for food because of a temporary duty assignment). In contrast, the Union's interpretation--that subsistence expenses need only be incurred--is not consistent with the language of the regulation. Moreover, the Union has not established that the grievant in fact incurred additional subsistence expenses because of the temporary duty assignment. Therefore, we conclude that the Union has not established that the award is contrary to an agency regulation.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. JTR, Chapter C4552 provides in pertinent part:

Per Diem will not be authorized when an employee does not incur additional subsistence expenses because of a temporary duty assignment in the vicinity of, but outside, the permanent duty station area. . . .

Award at 3.

2. 2/ The Union claims that Article 29, Section 7 of the parties' collective bargaining agreement is pertinent to the dispute. That provision provides:

Permanent SNI or SCI employees assigned temporary duty at Point Mugu whose residence is outside a 40-mile radius of the Point Mugu complex will be placed in a travel status in accordance with the JTR. All other employees assigned temporary duty receive travel expenses, i.e., mileage only.

Union's Exceptions at 2.

3. It is undisputed that the JTR is an agency regulation. See Fort Campbell, 37 FLRA at 195-96.

4. Because the parties' agreement does not apply to the matters in dispute, we deny the Union's exception that the award fails to draw its essence from the agreement. On the same basis, we conclude that this case is distinguishable from Panama Canal Commission and International Association of Firefighters, Local 13, 41 FLRA 284, 292-93 (1991) (when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute).