FLRA DECISIONS

60 FLRA No. 66

CONTRACTUALLY PRESERVED TRAVEL & PER DIEM PAST PRACTICES

Social Security Administration, New York, New York and American Federation of Government Employees, Local 3369, 0-AR-3837, September 30, 2004, 60 FLRA No. 66.

Holding

FLRA turned down the agency's exceptions to an award in which the arbitrator held that although Article 1, Section 2 of the agreement provides for mid-term changes of past practices that aren't specifically covered by the agreement, Section K of the agreement guarantees continuation of travel and per diem payments to union officials for representational activities on official time and, as such, is not subject to mid-term bargaining.

Summary

Since 1980 and before negotiation of the parties' first CBA, a past practice existed whereby the agency paid travel and per diem expenses for local union officials in connection with representational activities on official time outside the local's geographical jurisdiction. The initial CBA preserved existing past practices not specifically covered by the agreement, subject to the employer's right to initiate midterm bargaining to change such practices. That provision has remained unchanged in all the parties' subsequent agreements.

To resolve issues concerning interpretation of the first agreement, the parties negotiated an MOU that provided that, consistent with practices in existence when the agreement took effect, the agency would continue to pay travel and per diem expenses for union officials. The agency agreed to continue the MOU in effect by including Section K in subsequent term agreements, which reads as follows: "Section K. Any payment of travel and per diem will be limited to that which is specifically provided for by this agreement, and past practices in effect on June 10, 1982."

When the Regional Commissioner notified the union that the agency would no longer follow the practice and that it would engage in midterm bargaining over the change, the union grieved and the matter was referred to arbitration where the arbitrator held that since the travel and per diem was specifically covered by the contract, the agency couldn't unilaterally terminate it and require midterm bargaining over the matter. Indeed, he went further and found that the agency had repudiated the agreement and as a remedy ordered the agency to rescind the discontinuance of the travel and per diem past practice and to pay travel and per diem to any union official who had been denied such payment. For the repudiation-of-agreement ULP he also ordered the agency to cease and desist from repudiating its obligation under section K and ordered the agency to post a mea culpa notice.

In rejecting the agency's challenge to the arbitrator's interpretation of the agreement, FLRA said the following:

By its terms . . . Article 1, Section 2 provides for mid-term bargaining with respect to changes in past practices that are not specifically covered by the agreement. The Arbitrator found that Section K, by preserving the travel and per diem expenses past practice, specifically provided for that practice as a part of the agreement. As such, the Arbitrator concluded that the practice was not subject to the right of mid-term change through bargaining set forth in Article 1, Section 2. The Agency has not demonstrated that this is an implausible interpretation of the agreement. Nor has the Agency demonstrated that the award is deficient under any of the other elements of the essence test.

FLRA also rejected the agency's claim that the arbitrator's finding that it violated the FSLMRS by repudiating the agreement was contrary to law. It noted that it has held that where the meaning of a contract term is unclear and the party acts in accordance with a reasonable interpretation of that term, such action wouldn't constitute a clear and patent breach of the terms of the agreement. In FLRA's view, the agency failed to show that the provisions addressed by the arbitrator were sufficiently ambiguous to permit a reasonable interpretation differing from that of the arbitrator.

The phrase "not specifically covered" is clear and unambiguous. Nor is there any ambiguity in the effect of Section K in preserving the past practice in dispute. The Arbitrator correctly rejected the Agency's rationale for its action and properly determined, under the Authority's framework, that the Agency repudiated the agreement by failing to comply with Section K.

It accordingly dismissed the agency's exceptions.

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