Colorado River Storage Project, Bureau of Reclamation and IBEW Local 2159 (Authority decision, March 20, 1986)

Final FLRA decision. This is a final Authority order on exceptions to an arbitration award under 5 U.S.C. § 7122. Judicial review in a court of appeals is excluded by 5 U.S.C. § 7123(a)(1) because this order does not involve an unfair labor practice under 5 U.S.C. § 7118.

Plain-English summary

An interest arbitrator declined IBEW Local 2159's proposal to make the Bureau of Reclamation pay travel and per diem costs for grievance participants. The arbitrator also kept the existing procedure for approving local agreements while suggesting optional clarifying language. The union challenged both rulings. The Authority found that federal law did not entitle the union to have its travel proposal inserted in the agreement, and that the union's objection to suggested language did not challenge an operative part of the award. It denied both exceptions.

Decision snapshot

• Authority: Review of arbitration awards under 5 U.S.C. § 7122(a) and official time under § 7131(d).
• Outcome: Union exceptions denied; interest arbitration award upheld.
• Key point: A negotiable travel reimbursement proposal need not be included in an agreement by an interest arbitrator.

Full text (FLRA public release)

[ v21 p86 ]

21:0086(17)AR

The decision of the Authority follows:

21 FLRA No. 17

COLORADO RIVER STORAGE PROJECT,
BUREAU OF RECLAMATION,
U.S. DEPARTMENT OF THE INTERIOR
Activity

and

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 2159
Union

Case No 0-AR-495

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the interest arbitration award of Arbitrator William E. Rentfro filed by the Union 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 dispute before the Arbitrator concerned, among other things, the negotiation impasse of the parties over what modification, if any, should be made in the grievance procedures and what procedures should be followed by the parties in effecting final approval of agreements negotiated at the local level. Pursuant to the provisions of the parties' general agreement approved by the Federal Services Impasses Panel, the impasse was referred to interest arbitration for resolution. With respect to the grievance procedures, the Arbitrator noted that the Union had proposed a change to provide travel and per diem expenses for the grievant, witnesses, and representatives while presenting a grievance. In terms of the proposal, the Arbitrator observed that traditionally, the risk or cost in processing a grievance has been borne by each party. He concluded that if each party pays its own way in pursuing a grievance, the stakes are more equitable and the parties are encouraged to settle the grievance at an early stage without resort to arbitration. Accordingly, as his award in this respect, the Arbitrator determined not to incorporate this proposal into the collective bargaining agreement.

With respect to the approval procedure, the Arbitrator noted that the Activity had proposed several amendments and that the Union had objected to the proposals because they were not within the mandatory duty to bargain and therefore were not properly before the Arbitrator. The Arbitrator agreed with the Union's characterization and concluded that the proposed changes were not appropriate amendments to the approval procedure as contained in the existing agreement. Accordingly, as his award in this respect, the Arbitrator determined not to change the approval procedure of the existing agreement. However, because of the expressed concerns of the Activity, the Arbitrator suggested that a clarification of the existing agreement might satisfy those concerns. Thus, he suggested a clarification of the existing language and proposed for consideration by the parties certain additional language to further clarify the intent of the existing agreement.

The Union has filed exceptions to the Arbitrator's resolution of both of these impasses.

III. FIRST EXCEPTION

A. Contentions

In its first exception the Union contends that the Arbitrator's resolution of the impasse over grievance procedures by determining not to include a provision for travel and per diem is deficient as contrary to law and contrary to the evidence. In support of this exception, the Union primarily argues that the refusal to provide for travel and per diem is contrary to section 7131(d) of the Statute and ignores the evidence showing the hardships on employees of grievances and the evidence showing that it is not traditional in the Federal sector for each side to pay its own costs.

B. Analysis and Conclusion

The Authority finds that the Union fails to establish that the award is deficient as alleged. Contrary to the argument of the Union that the refusal to provide for travel and per diem is contrary to section 7131(d), the Authority stated in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), that both the Statute and the legislative history are silent on the payment from Federal funds of travel expenses incurred in the conduct of labor-management relations activities, which would include in terms of this case the processing of grievances. Id. at 3. Moreover, the Authority noted in Customs Service that the U.S. Supreme Court, in Bureau of Alcohol, Tobacco and Firearms, 464 U.S. 89 (1983), had rejected the argument that employees on official time were entitled under law to travel and per diem expenses. In reaching its decision on remand in the Customs Service case, in the light of the Supreme Court's decision in BATF, the Authority concluded that the union's proposal seeking payment of travel and per diem expenses incurred by employees on official time was within the agency's duty to bargain under the Statute. However, the Authority further concluded that while the agency was obligated to bargain in good faith over the disputed proposal it was under no obligation to agree to the union's formulation. Customs Service, at 8-9. The Authority therefore finds in this case that the Union's position that it was entitled as a matter of law to have its proposal for the payment of travel and per diem expenses included in the parties' agreement is without merit. The Authority concludes that the Arbitrator's determination not to require that the Union's proposal be included in the agreement is not contrary to section 7131(d) of the Statute as alleged by the Union. Similarly, the Union's contention that the award is contrary to the evidence is nothing more than disagreement with the Arbitrator's evaluation of the evidence and with his reasoning and conclusions in reaching his determination not to incorporate the Union's proposal into the agreement. Consequently, this contention provides no basis for finding the award deficient. See, e.g., American Federation of Government Employees, Council 236 and General Services Administration, National Capital Region, 12 FLRA 236 (1983).

IV. SECOND EXCEPTION

A. Contentions

In its second exception the Union contends that the Arbitrator's resolution of the impasse over the approval procedure is contrary to law and contrary to the evidence.

B. Analysis and Conclusion

The Authority finds that the Union fails to establish that the award is deficient as alleged. In support of this exception the Union does not argue that the Arbitrator's determination not to change the existing agreement is deficient or that the approval provision of the existing agreement is contrary to law. Instead, the Union only argues that the Arbitrator's suggested clarification of the existing language and his proposal of additional language for consideration by the parties, which the Union concedes is not mandated to be incorporated into the agreement, are deficient. Consequently, because this exception does not address the award, which as noted resolved the impasse in favor of the Union by ruling not to change the approval procedure of the existing agreement, no basis is provided for finding the award deficient.

V. DECISION

Accordingly, the Union's exceptions are denied.

Issued, Washington, D.C., March 20, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

(*) Contrary to the argument of the Agency that section 7122(a) of the Statute and part 2425 of the Authority's Rules do not apply to interest arbitration awards, the Authority has specifically confirmed its jurisdiction to resolve exceptions to interest arbitration awards. Department of Housing and Urban Development and American Federation of Government Employees, Local 476, AFL-CIO, 18 FLRA No. 95 (1985); Patent and Trademark Office and Patent Office Professional Association, 15 FLRA 990 (1984).