23:0366(51)AR - Customs Service, Chicago-O'Hare and NTEU Chapter 172 -- 1986 FLRAdec AR



[ v23 p366 ]
23:0366(51)AR
The decision of the Authority follows:


 23 FLRA No. 51
 
 U.S. CUSTOMS SERVICE
 CHICAGO-O'HARE
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 172
 Union
 
                                            Case No. 0-AR-1076
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Charles B. Craver filed by the Agency 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 parties submitted to arbitration the issue of whether the failure
 to permit the grievants to exchange work locations violated the parties'
 collective bargaining agreement.  The Arbitrator determined that the
 Activity had violated the agreement and sustained the grievance.  Noting
 that each grievant had additional miles added to the distance between
 home and work as a result of the Activity's improper actions, the
 Arbitrator as a remedy directed that the grievants be paid for their
 additional commuting expenses.
 
                             III.  EXCEPTIONS
 
    In its exceptions the Agency contends that the remedy directing that
 the Activity pay the additional commuting expenses incurred by the
 grievants is deficient.  Specifically, the Agency maintains that the
 award of such commuting expenses is contrary to law becasue it is not
 authorized as reimbursable travel expenses.  The Agency further
 maintains that the award of such expenses is not authorized under the
 Back Pay Act as an award of backpay.  The Agency states that the
 commuting expenses are not "pay allowances, or differentials" awardable
 as backpay under the Act.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We agree with the Agency.  There is no provision in any relevant
 statute or regulation that permits the payment or reimbursement of the
 additional personal commuting expenses of the grievants as directed by
 the Arbitrator.
 
    Both the Authority and the Comptroller General have indicated that
 unless essential to the transacting of Official business, no costs or
 expenses incurred by Federal employees for transportation between their
 residences and official duty stations are payable or reimbursable under
 law and regulation pertaining to travel expenses.  Internal Revenue
 Service, Houston District and National Treasury Employees Union, Chapter
 222, 18 FLRA No. 64 (1985);  60 Comp. Gen. 420 (1981);  see Travel
 Expense Act, 5 U.S.C. Section 5701 et seq.; Federal Travel Regulations,
 41 CFR part 101-7.  Instead, Federal employees must bear all such
 transportation costs as personal commuting expenses.  See IRS, Houston
 District, slip op. at 2.  Accordingly, there is no authorization under
 law and regulation for the payment directed by the Arbitrator of the
 additional personal commuting expenses incurred by the grievants.
 
    Similarly, neither the Back Pay Act, 5 U.S.C. Section 5596, nor its
 implementing regulations, 5 CFR part 550, subpart H, authorize the
 payment or reimbursement of personal commuting expenses as part of an
 award of backpay.  The Back Pay Act provides the appropriate authority
 to remedy with an award of backpay an unjustified or unwarranted
 personnel action that has denied an aggrieved employee "pay;
 allowances, or differentials" that the employee would have earned or
 received if the personnel action had not occured. "Pay allowances, and
 differentials" are defined in 5 CFR Section 550.803 as "monetary and
 employment benefits to which an employee is entitled by statute or
 regulation by virtue of the performance of a Federal function." In
 Community Services Administration and National Council of CSA Locals,
 AFGE, AFL-CIO, 7 FLRA 206 (1981), the Authority concluded that "pay,
 allowances, or differentials" encompassed by the Act constitute normal,
 legitimate employee benefits in the nature of employment compensation or
 emoluments.  7 FLRA at 209.  Accordingly, in this case, we find that
 additional personal commuting expenses incurred as the result of the
 Activity's unwarranted action are not proper components of an award of
 backpay under the Back Pay Act and its implementing regulations.
 Futhermore, in terms of the Act, the Arbitrator did not find, and it is
 not otherwise apparent, that the expenses directed by the Arbitrator to
 be reimbursed are expenses which the grievants "normally would have . .
 . received during the period if the personnel action had not occurred."
 5 U.S.C. Section 5596(b)(1)(A)(i).
 
                               V.  DECISION
 
    For these reasons we find that the award of additional personal
 commuting expenses incurred by the grievants as a result of the
 Activity's actions is not authorized by governing law and regulation and
 therefore is dificient and must be modified.  Accordingly, the award is
 modified by striking the second sentence of the Arbitrator's award
 directing the Activity to make whole the two grievants for their
 additional commuting expenses.  /*/
 
    Issued, Washington, D.C., September 23, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    In view of this decision, the Authority need not address the Agency's
 other contention in its exceptions to the aw