49:0055(10)AR - - Treasury, IRS, Indianapolis District and NTEU, Chapter 49 - - 1994 FLRAdec AR - - v49 p55
[ v49 p55 ]
The decision of the Authority follows:
49 FLRA No. 10
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
NATIONAL TREASURY EMPLOYEES UNION
February 4, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Lawrence I. Donnelly filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained grievances contesting the reassignment of two grievants to a new duty station. As relevant here, the Arbitrator ordered the Agency to permit the grievants to return to their former duty station and to reimburse the grievants for certain travel expenses.
For the following reasons, we find that the portion of the award directing the Agency to reimburse the grievants for travel expenses is inconsistent with law and regulation. Therefore, we will modify the award by striking that portion of the award. As the Agency's remaining exception provides no basis for finding the award deficient, we will deny that exception.
II. Background and Arbitrator's Award
The Union filed two grievances contesting the Agency's modification of the Employment Tax Examination Program (ETEP) and the resulting reassignment of two Revenue Officer Examiners in the ETEP to a new duty station approximately 12 miles from their former duty station. The grievances were denied and were submitted to arbitration on the following stipulated issue:
Whether the Agency violated the . . . collective bargaining agreement . . . and applicable statutes when . . . [it] reassigned the grievants to another post of duty. If so, what shall the remedy be?
Award at 4.
As relevant here, and consistent with the Agency's concession, the Arbitrator found that the Agency's failure to afford the Union notice and opportunity to bargain over impact and implementation of the modification of the ETEP and the reassignment of the two grievants violated applicable statutes and the parties' agreement. To remedy the violation, the Arbitrator ordered the Agency to permit the grievants to choose whether to remain at the new duty station or to return to their former duty station and to "reimburse the [g]rievants for any actual increase in travel expenses" resulting from their improper reassignment.(1) Award at 16.
III. First Exception
A. Positions of the Parties
The Agency argues that the portion of the award directing the Agency "to offer the grievants a choice" of duty station violates management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Exceptions at 4. The Agency submits that, as the parties' agreement contains procedures for involuntary reassignments, the appropriate remedy would be to order the Agency to retroactively apply the procedures.
The Union disputes the Agency's contention that permitting the grievants to choose their duty station violates management's rights to assign employees and work.
B. Analysis and Conclusions
First, we reject the Agency's claim that, to remedy the disputed reassignments, the Arbitrator should have ordered the Agency to retroactively apply the appropriate procedures set out in the parties' agreement. The Authority has repeatedly recognized that arbitrators have great latitude and discretion in determining and fashioning remedies. For example, U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 464 (1991) (Fort McClellan). Moreover, the Authority has consistently denied exceptions that constitute nothing more than disagreement with an arbitrator's determination as to the remedy. Id. Consistent with these principles, we find that the Agency's claim does not provide a basis for finding the award deficient.
Next, we reject the Agency's assertion that the award is contrary to management's rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute. Although the right to assign employees "means the right to decide the particular position to which an employee will be assigned[,] . . . [t]his right does not normally encompass the decision as to where employees will perform duties previously assigned to their positions." Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 834 (1991)(emphasis in original). Similarly, as to management's right to assign work, "the location at which employees perform the normal duties of their jobs is negotiable unless a relationship exists between the job location and the job duties." American Federation of Government Employees, AFL-CIO, Local 3369 and Social Security Administration, Cypress Hills District Office, 31 FLRA 1110, 1111-12 (1988).
The Agency does not claim that the grievants were assigned to different positions or that there is any relationship between the job duties assigned to the grievants and any particular job location. In fact, the Arbitrator noted that the grievants' "work on ETEP inventory was to be transferred" with them to their new duty station. Award at 2. In addition, the Union asserts that the grievants' positions and work are "identical" at either duty station. Opposition at 6. In these circumstances, we find that the Agency has not established that the award is inconsistent with its rights to assign employees and work. In so holding, we find that the Agency's reliance on American Federation of Government Employees, Local 12 and United States Department of Labor, 34 FLRA 877 (1990), Naval Air Rework Facility, Jacksonville, Florida and National Association of Government Inspectors and Quality Assurance Personnel, 27 FLRA 318 (1987) and Naval Undersea Warfare Engineering Station, Keyport, Washington and International Association of Machinists and Aerospace Workers, Local 282, 22 FLRA 957 (1986) is misplaced. Those cases involved management's right to assign employees to different positions and to determine specific work assignments rather than, as here, the determination as to where employees will perform the work assigned to their positions.
IV. Second Exception
A. Positions of the Parties
The Agency asserts that the portion of the award requiring the Agency to reimburse the grievants for any increase in actual travel costs "[i]mplicitly" refers to commuting expenses. Exceptions at 5. The Agency claims that, as Federal law and Government-wide regulation prohibit agencies from reimbursing employees for their commuting expenses, this portion of the award is deficient.
According to the Union, the Arbitrator "explicitly state[d]" that the grievants should be reimbursed for travel expenses rather than commuting expenses. Opposition at 10. In addition, the Union asserts that, by granting the grievants the option to return to their original duty station, the Arbitrator "treats the improper transfer . . . as an assignment to a temporary duty [station] . . . ." Id. at 12. The Union notes that "[it] is well settled that an employee may be reimbursed for milage when using a privately owned vehicle to commute from his/her residence to a temporary duty station." Id. at 12-13 (citation omitted).
B. Analysis and Conclusions
As we stated previously, arbitrators have great latitude and discretion in determining and fashioning remedies. See, Fort McClellan. However, such remedies cannot be sustained under section 7122(a) of the Statute if they are contrary to, among other things, law, rule or regulation.
Under 5 U.S.C. § 5704 and implementing regulations set out at 41 C.F.R. Part 301, employees may be reimbursed for various expenses, including mileage expenses, for travel on official business for the Government. However, reimbursement for expenses related to home-to-work travel is prohibited by 5 U.S.C. § 5704. See, for example, American Federation of Government Employees, Local 3006 and U.S. Department of Defense, National Guard Bureau, State of Idaho, Office of the Adjutant General, 47 FLRA 155, 159-61 (1993) (National Guard Bureau, State of Idaho). As relevant here, we conclude that the portion of the award requiring the Agency to reimburse the grievants for any increase in travel expenses resulting from their improper reassignment is deficient because it requires the Agency to reimburse the grievants for home-to-work commuting expenses.
In reaching this conclusion, we reject the Union's claim that, because the Arbitrator did not explicitly order reimbursement for commuting expenses, the award does not concern reimbursement for such expenses. In this connection, the Arbitrator noted that the grievants' new duty station was located approximately 12 miles from their original duty station. He found that, as "added travel expenses were possibly involved in the reassignment[,]" the grievants should "be compensated for added actual travel expenses due to the improper assignment; the regular IRS mileage allowance should be use if an auto is involved." Award at 14. We conclude, based on the award as a whole, that the award requires reimbursement for extra commuting costs resulting from the additional traveling distance between the employees' residences and their new duty station.
We also reject the Union's claim that the grievants are entitled to reimbursement for travel expenses because they were traveling to a temporary duty station. Contrary to the Union's claim, the record establishes that the grievants were permanently reassigned to a new duty station. In this regard, the Arbitrator found that the grievants were reassigned pursuant to Article 15, of the parties' agreement, which is entitled "Reassignments and Voluntary Relocations," and which defines reassignment in Section 1.B.2 as "a permanent change in an employee's position or a permanent change in the post of duty (POD) to which the employee is assigned[.]" Attachment 5 to Exceptions. Although the Arbitrator remedied the grievants' improper reassignments by ordering the Agency to permit the grievants to choose whether to remain at the new duty station, such remedy does not, in our view, convert the permanent reassignments into temporary assignments.
Finally, we note that the Union does not claim, and nothing in the record indicates, that the grievants were otherwise engaged in travel between their residences and their permanent duty stations in circumstances for which payment is authorized under 41 C.F.R. § 301-2.3.(2) Therefore, we conclude that the portion of the award requiring the Agency to reimburse the grievants for any increase in travel expenses resulting from their improper reassignment requires the Agency to reimburse the grievants for home-to-work commuting expenses. Because reimbursement for such expenses is prohibited by 5 U.S.C. § 5704, that portion of the award is deficient. National Guard Bureau, State of Idaho. Accordingly, we will strike that portion of the award.
The award is modified by striking the portion of the award that directs the Agency to reimburse the grievants for actual increased travel expenses. The Agency's remaining exception is denied.
(If blank, the decision does not have footnotes.)
1. Other aspects of the Arbitrator's award are not in dispute and will not be addressed.
2. 41 C.F.R. §§ 301-2.3(d) and (e) authorize reimbursement for home-to-work travel expenses as follows:
(d) Between residence and office on day travel is performed. Reimbursem