International Brotherhood of Electrical Workers, Local 1688 (Union) and U.S. Army Engineer District, Omaha (Activity) (Authority decision, February 4, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

An Army engineer district stopped providing rides between nearby towns and the Big Bend Power Plant after officials questioned their legal authority. An arbitrator ordered the transportation restored. The Authority held that the award could not require immediate service without authorization from the Secretary of the Army under 10 U.S.C. § 2632. It changed the remedy to require the agency to seek appropriate approval and sustained the award as modified.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a), 10 U.S.C. § 2632.
• Outcome: Award modified; agency must seek authorization rather than immediately restore rides.
• Key point: The Secretary’s approval was required before the transportation could resume.

Full text (FLRA public release)

[ v05 p44 ]

05:0044(8)AR

The decision of the Authority follows:

5 FLRA No. 8

LOCAL 1688, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS
Union

and

U.S. ARMY ENGINEER
DISTRICT, OMAHA
Activity

Case No. 0-AR-74

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR MARTIN CONWAY FILED BY THE AGENCY UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).

ACCORDING TO THE ARBITRATOR THE DISPUTE IN THIS MATTER AROSE WHEN THE
ACTIVITY UNILATERALLY CEASED PROVIDING TRANSPORTATION FOR EMPLOYEES TO
AND FROM THE BIG BEND POWER PLANT IN SOUTH DAKOTA. THE PLANT AND THE
DAM ARE LOCATED 25 TO 35 MILES FROM THE TWO TOWNS WHERE THE MAJORITY OF
THE EMPLOYEES WORKING AT THE PLANT LIVE AND THE ACTIVITY HAS, SINCE
1961, PROVIDED TRANSPORTATION FOR EMPLOYEES FROM THESE TWO TOWNS. IN
GENERAL, ACCORDING TO THE ARBITRATOR, THE VEHICLES WHICH HAVE BEEN
ACQUIRED BY THE ACTIVITY TO PROVIDE THIS TRANSPORTATION CONSIST OF "A
SMALL BUS, A VAN, AND ANOTHER VEHICLE OR TWO IN THE NATURE OF A JEEP OR
A SIMILAR VEHICLE; ALL OF WHICH HAD 4-WHEEL DRIVE AND POWER SUFFICIENT
TO NEGOTIATE THE ROADS FROM THE TOWNS TO THE DAM SITE."

THE ACTIVITY TERMINATED THE TRANSPORTATION PURSUANT TO AN ORDER FROM
THE OFFICE OF THE CHIEF OF ENGINEERS DATED JUNE 19, 1979. IT WAS
CONCLUDED BY THAT OFFICE THAT SUCH TRANSPORTATION WAS NOT ONLY WITHOUT
AUTHORIZATION, BUT ALSO IN VIOLATION OF FEDERAL LAW. IT APPEARS THAT
THE FEDERAL STATUTES PRIMARILY INVOLVED WERE 31 U.S.C. 638A AND 10
U.S.C. 2632. SECTION 638A OF TITLE 31 PROVIDES IN RELEVANT PART:

(A) UNLESS SPECIFICALLY AUTHORIZED BY THE APPROPRIATION CONCERNED OR
OTHER LAW, NO

APPROPRIATION SHALL BE EXPENDED TO PURCHASE OR HIRE PASSENGER MOTOR
VEHICLES FOR ANY BRANCH OF

THE GOVERNMENT OTHER THAN THOSE FOR THE USE OF THE PRESIDENT OF THE
UNITED STATES, THE

SECRETARIES TO THE PRESIDENT, OR THE HEADS OF THE EXECUTIVE
DEPARTMENTS ENUMERATED IN SECTION

101 OF TITLE 5.

(C) UNLESS OTHERWISE SPECIFICALLY PROVIDED, NO APPROPRIATION
AVAILABLE FOR ANY DEPARTMENT

SHALL BE EXPENDED--

(2) FOR THE MAINTENANCE, OPERATION, AND REPAIR OF ANY
GOVERNMENT-OWNED PASSENGER MOTOR

VEHICLE OR AIRCRAFT NOT USED EXCLUSIVELY FOR OFFICIAL PURPOSES; AND
"OFFICIAL PURPOSES" SHALL

NOT INCLUDE THE TRANSPORTATION OF OFFICERS AND EMPLOYEES BETWEEN
THEIR DOMICILES AND PLACES OF

EMPLOYMENT, EXCEPT IN CASES OF MEDICAL OFFICERS ON OUT-PATIENT
MEDICAL SERVICE AND EXCEPT IN

CASES OF OFFICERS AND EMPLOYEES ENGAGED IN FIELD WORK THE CHARACTER
OF WHOSE DUTIES MAKES SUCH

TRANSPORTATION NECESSARY AND THEN ONLY AS TO SUCH LATTER CASES WHEN
THE SAME IS APPROVED BY

THE HEAD OF THE DEPARTMENT CONCERNED. . . .

SECTION 2632 OF TITLE 10, AS AMENDED, PROVIDES IN RELEVANT PART:

(A) WHENEVER THE SECRETARY OF A MILITARY DEPARTMENT DETERMINES THAT
IT IS NECESSARY FOR THE

EFFECTIVE CONDUCT OF THE AFFAIRS OF THAT DEPARTMENT, HE MAY, AT
REASONABLE RATES OF FARE UNDER

REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE, PROVIDE
ASSURED AND ADEQUATE

TRANSPORTATION BY MOTOR VEHICLE OR WATER CARRIER--

(1) AMONG PLACES ON ANY MILITARY INSTALLATION (INCLUDING ANY
SUBINSTALLATION THEREOF) UNDER

THE JURISDICTION OF THAT DEPARTMENT; AND

(2) TO AND FROM THEIR PLACE OF EMPLOYMENT--

(A) FOR PERSONS ATTACHED TO, OR EMPLOYED IN, THAT DEPARTMENT; AND

(B) DURING A WAR OR NATIONAL EMERGENCY DECLARED BY THE CONGRESS OR
THE PRESIDENT, FOR

PERSONS ATTACHED TO, OR EMPLOYED IN, A PRIVATE PLANT THAT IS
MANUFACTURING MATERIAL FOR THAT

DEPARTMENT.

(B)(1) TRANSPORTATION MAY NOT BE PROVIDED UNDER SUBSECTION (A)(2)
UNLESS THE SECRETARY

CONCERNED, OR AN OFFICER OF THE DEPARTMENT CONCERNED DESIGNATED BY
THE SECRETARY, DETERMINES

THAT--

(A) OTHER FACILITIES ARE INADEQUATE AND CANNOT BE MADE ADEQUATE;

(B) A REASONABLE EFFORT HAS BEEN MADE TO INDUCE OPERATORS OF PRIVATE
FACILITIES TO PROVIDE

THE NECESSARY TRANSPORTATION; AND

(C) THE SERVICE TO BE FURNISHED WILL MAKE PROPER USE OF
TRANSPORTATION FACILITIES AND WILL

SUPPLY THE MOST EFFICIENT TRANSPORTATION TO THE PERSONS CONCERNED.

THE UNION FILED A GRIEVANCE OVER THE TERMINATION OF THE
TRANSPORTATION, CONTENDING THAT IT WAS A "CONDITION OF EMPLOYMENT"
RELIED UPON BY EMPLOYEES, THAT IT HAD BECOME AN ESTABLISHED PAST
PRACTICE, AND THAT OFTEN CONDITIONS ON THE ROAD TO THE PLANT
NECESSITATED IT. THE PARTIES WERE UNABLE TO RESOLVE THE DISPUTE AND IT
WAS ULTIMATELY SUBMITTED TO ARBITRATION.

THE ISSUES ADDRESSED BY THE ARBITRATOR WERE:

DID THE EMPLOYER'S ACTION IN DISCONTINUING THE PROVISION OF PASSENGER
VEHICLES FOR

TRANSPORTATION OF EMPLOYEES TO AND FROM THE JOB SITE RESULT IN ANY
VIOLATION OF ANY OF THE

TERMS AND CONDITIONS OF THE NEGOTIATED AGREEMENT? IF SO, WHAT SHALL
THE REMEDY BE?

ALTERNATIVELY: WAS THE EMPLOYER'S ACTION IN CANCELLING AND REVOKING
PROVISION OF PASSENGER

VEHICLES FOR THE BENEFIT OF TRANSPORTING EMPLOYEES TO AND FROM
DOMICILE AREAS TO JOB SITE

APPROPRIATE AND ESSENTIAL WITH RESPECT TO STATUTORY AND REGULATION
PROHIBITIONS? IF NOT, WHAT

SHALL THE REMEDY BE?

THE ARBITRATOR FIRST EXAMINED THE QUESTION OF WHETHER THERE WERE ANY
STATUTORY PROHIBITIONS AGAINST FURNISHING THE TRANSPORTATION. AS TO THE
PROVISIONS OF 31 U.S.C. 638A, HE FOUND THAT THE "SPECIFIC AUTHORIZATION"
REQUIRED BY THAT SECTION OFFERED "NO INSURMOUNTABLE OBSTACLE TO THE
CONTINUANCE OF THE PROVISION OF (TRANSPORTATION)." IN THIS REGARD HE
STATED THAT HE "ASSUME(D) THAT APPROPRIATION FOR SUCH VEHICLES HAD BEEN
MADE, AND EVEN IF IT HASN'T, . . . THE LONG TERM PRACTICE OF PROVIDING
(THE TRANSPORTATION), ELEVATES THAT CONDITION TO THE STATUS OF A
'CONDITION OF EMPLOYMENT' . . . " UNDER THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT. AS TO THE PROVISIONS OF 10 U.S.C. 2632, THE
ARBITRATOR NOTED THAT SECTION PERMITS THE SECRETARY OF A MILITARY
DEPARTMENT, WITHIN HIS DISCRETION, TO PROVIDE TRANSPORTATION BETWEEN THE
EMPLOYEE'S DOMICILE AND HIS WORK SITE AT REASONABLE RATES. HE CONCLUDED
FROM THE FACTS BEFORE HIM THAT IT WAS NOT "AN UNREASONABLE EXERCISE OF
THE DISCRETIONARY POWER GRANTED TO THE SECRETARY, AND HENCE TO THE
FUNCTIONARIES IN THE DEPARTMENT UNDER THE SECRETARY, TO CONTINUE THE
PROVISION OF SUCH (TRANSPORTATION) WHICH HAS HAD SUCH A LONG HISTORY AND
FOR SUCH APPARENTLY GOOD REASONS." HE FURTHER CONCLUDED THAT:

(T)HE WHOLE IMPORT OF SECTION 2632 IS TO PROVIDE WHAT APPEAR TO BE
REASONABLE RESTRICTIONS

ON UNREASONABLE USES OF SUCH (TRANSPORTATION). I DO NOT FIND ANY
UNREASONABLE USE HERE OF THE

(TRANSPORTATION) REQUESTED. MY VIEW OF THE CIRCUMSTANCES FINDS THAT
THE REQUEST FOR

CONTINUANCE OF SUCH EQUIPMENT IS ABSOLUTELY REASONABLE, GIVEN THE
CONDITIONS THAT PREVAIL

HERE.

FINDING NO STATUTORY PROHIBITIONS AGAINST FURNISHING THE
TRANSPORTATION AND DETERMINING THAT THE LONG ESTABLISHED PRACTICE OF
FURNISHING THE TRANSPORTATION GAVE IT "THE CHARACTER OF A CONTRACT
BENEFIT," THE ARBITRATOR CONCLUDED THAT THE ACTIVITY HAD VIOLATED
ARTICLE 2, SECTION D OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT /1/
BY DISCONTINUING THE TRANSPORTATION. THE ARBITRATOR THEREFORE MADE THE
FOLLOWING AWARD:

THE EMPLOYER DID VIOLATE THE CONTRACT PROVISIONS OF ARTICLE 2(D) BY
UNILATERALLY

DISCONTINUING A LONG ESTABLISHED PRACTICE WHICH TAKES THE CHARACTER
OF A CONTRACT BENEFIT EVEN

THOUGH NOT EXPRESSLY STATED IN THE CONTRACT, AND THAT SUCH PROVISION
OF VEHICLES MUST BE

REINSTATED FORTHWITH.

THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 C.F.R. PART
2425. THE UNION FILED AN OPPOSITION.

THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
AGENCY'S EXCEPTION, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
RELATIONS CASES.

IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S AWARD, IF
IMPLEMENTED, WOULD VIOLATE LAW. ACCORDING TO THE AGENCY, THE ARBITRATOR
IGNORED THE LEGAL REQUIREMENTS OF 10 U.S.C. 2632 BY DIRECTING THE OMAHA
DISTRICT ENGINEER TO REINSTATE THE TRANSPORTATION. IN THIS REGARD THE
AGENCY STATES THAT

(I)F THE DISTRICT ENGINEER (THE "EMPLOYER") WERE TO IMPLEMENT THE
AWARD BY REINSTATING THE

TRANSPORTATION ARRANGEMENT, HE WOULD VIOLATE THE REQUIREMENTS OF 10
U.S.C. 2632 THAT, WITHIN

ARMY, ONLY THE SECRETARY OF THE ARMY MAY "PROVIDE" SUCH ARRANGEMENTS.
. . . (T)HE ARBITRATOR

DOES NOT DIRECT THE DISTRICT ENGINEER TO REQUEST APPROVAL OF THE
SECRETARY, AS WAS INITIALLY

SOUGHT AS REMEDIAL ACTION BY THE UNION . . . . RATHER, THE AWARD
DIRECTS REINSTATEMENT BY THE

DISTRICT ENGINEER.

THUS, THE AGENCY STATES THAT IT DOES NOT QUESTION THE ARBITRATOR'S
FINDINGS OF FACT NOR HIS CONCLUSION THAT THE PARTIES' AGREEMENT WAS
VIOLATED, BUT ONLY THAT HIS AWARD, IF IMPLEMENTED, WOULD BE CONTRARY TO
LAW. FURTHER, THE AGENCY ASSERTS THAT 31 U.S.C. 638A PROHIBITS THE
EXPENDITURE OF ANY APPROPRIATION FOR PASSENGER MOTOR VEHICLES UNLESS
SPECIFICALLY AUTHORIZED, AND THE DISTRICT ENGINEER CANNOT MAKE SUCH AN
AUTHORIZATION.

IN ITS OPPOSITION TO THE AGENCY'S EXCEPTION, THE UNION ARGUES THAT
THE STATUTORY PROVISIONS CITED BY THE AGENCY, I.E., 10 U.S.C. 2632 AND
31 U.S.C. 638A, DO SPECIFICALLY PROVIDE THE AUTHORITY FOR THE ACTIVITY
TO PROVIDE THE TRANSPORTATION DIRECTED BY THE ARBITRATOR IN THIS CASE
AND THAT, IN ANY EVENT, APPROVAL FOR THE TRANSPORTATION HAS COME THROUGH
APPROVAL OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT WHICH THE
ARBITRATOR FOUND VIOLATED.

THE AGENCY'S EXCEPTION, THAT THE AWARD IS CONTRARY TO LAW, STATES A
GROUND ON WHICH THE AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION
7122(A) OF THE STATUTE. UNITED STATES ARMY MISSILE MATERIEL READINESS
COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1858, AFL-CIO, 2 FLRA NO. 60(1980). FOR THE REASONS THAT FOLLOW,
WE FIND THAT THE ARBITRATOR'S AWARD IN THIS CASE IS DEFICIENT BECAUSE IT
IS CONTRARY TO 10 U.S.C. 2632 AND THAT IT MUST THEREFORE BE MODIFIED
ACCORDINGLY.

SECTION 2632 OF TITLE 10 PROVIDES THAT THE SECRETARY OF A MILITARY
DEPARTMENT MAY PROVIDE, AT REASONABLE RATES OF FARE, TRANSPORTATION TO
AND FROM THE EMPLOYMENT SITE FOR PERSONS EMPLOYED IN THAT DEPARTMENT
WHEN IT HAS BEEN DETERMINED THAT: (A) OTHER FACILITIES ARE INADEQUATE;
(B) REASONABLE EFFORTS HAVE BEEN MADE TO UTILIZE PRIVATE FACILITIES;
AND (C) THE SERVICES FURNISHED WILL MAKE PROPER AND EFFECTIVE USE OF
TRANSPORTATION FACILITIES. IN THIS CASE, THE ARBITRATOR RECOGNIZED THAT
APPROVAL FOR THE PURCHASE OF MOTOR VEHICLES FOR THE TRANSPORTATION HAD
BEEN GIVEN OVER THE YEARS, AND FOUND THAT BECAUSE OF THE CONDITIONS IN
EXISTENCE AT THE POWER PLANT AND ON THE ROAD THERETO IT WOULD NOT BE AN
"UNREASONABLE EXERCISE OF THE DISCRETIONARY POWER GRANTED TO THE
SECRETARY" UNDER SECTION 2632 TO CONTINUE THE TRANSPORTATION. HOWEVER,
AT NO POINT DID HE CLEARLY ESTABLISH THAT THE SECRETARY HAD GIVEN THE
REQUISITE PERMISSION FOR THE TRANSPORTATION. MOREOVER, CONTRARY TO THE
UNION'S ASSERTIONS, APPROVAL BY THE SECRETARY OF THE ARMY OF THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT WOULD NOT IN THE CIRCUMSTANCES
OF THIS CASE APPEAR TO CONSTITUTE THE SPECIFIC APPROVAL CONTEMPLATED BY
SECTION 2632 FOR PROVIDING SUCH TRANSPORTATION. /3/

THEREFORE, TO THE EXTENT THAT THE ARBITRATOR'S AWARD DIRECTS THE
ACTIVITY TO REINSTITUTE THE TRANSPORTATION WITHOUT FIRST REQUESTING
AUTHORIZATION FROM THE SECRETARY OF THE ARMY, IT IS CONTRARY TO 10
U.S.C. 2632. ACCORDINGLY, THE AWARD IS HEREBY MODIFIED BY STRIKING
THEREFROM THE WORDS "AND THAT SUCH PROVISION OF VEHICLES MUST BE
REINSTATED FORTHWITH" AND SUBSTITUTING THEREFOR THE WORDS "AND THE
ACTIVITY IS DIRECTED TO SEEK APPROPRIATE APPROVAL AND AUTHORIZATION FOR
SUCH PROVISION OF VEHICLES." /4/ BEING SO MODIFIED, THE AWARD IS
SUSTAINED.

FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, WE HEREBY MODIFY THE ARBITRATOR'S
AWARD, AND AS SO MODIFIED, SUSTAIN IT. /5/

ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ ARTICLE 2, SECTION D PROVIDES:

POLICIES IN EFFECT AT THE TIME OF THE SIGNING OF THIS AGREEMENT, AND
NOT SPECIFICALLY NOTED

HEREIN, MAY BE CHANGED AFTER GOOD FAITH NEGOTIATION.

/2/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION

TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
AWARD RELATING TO A

MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW
THE AUTHORITY FINDS THAT

THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT

CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
REGULATIONS.

/3/ IT IS NOTED THAT THE PROVISION OF THE PARTIES' AGREEMENT WHICH
THE ARBITRATOR FOUND HAD BEEN VIOLATED DEALS WITH CHANGING POLICIES ONLY
AFTER GOOD FAITH NEGOTIATIONS AND DOES NOT DEAL SPECIFICALLY WITH
PROVIDING THE TRANSPORTATION SOUGHT BY THE UNION.

/4/ WHILE THE AGENCY ALSO ALLEGES THAT IMPLEMENTATION OF THE AWARD
WOULD VIOLATE 31 U.S.C. 638A, SUCH ALLEGATION GOES TO THE AUTHORITY OF
THE DISTRICT ENGINEER TO IMPLEMENT SUCH AN AWARD, A DEFECT CURED BY THE
MODIFICATION HEREIN. CONTRARY TO THE UNION'S ASSERTIONS, HOWEVER,
NOTHING IN 31 U.S.C. 638A IN AND OF ITSELF WOULD PROVIDE THE REQUISITE
AUTHORITY, IN THE CIRCUMSTANCES OF THIS CASE, FOR THE ACTIVITY TO
CONTINUE THE TRANSPORTATION WITHOUT APPROPRIATE AUTHORIZATION.

/5/ IN CONJUNCTION WITH ITS EXCEPTION, THE AGENCY FILED A REQUEST FOR
A STAY OF THE ARBITRATOR'S AWARD PURSUANT TO SECTION 2429.8 OF THE
AUTHORITY'S RULES AND REGULATIONS. AS A RESULT OF THE DECISION AND
ACTION TAKEN HEREIN, THE AGENCY'S REQUEST FOR A STAY IS HEREBY DENIED.