54:1210(106)AR - - HHS and NTEU - - 1998 FLRAdec AR - - v54 p1210



[ v54 p1210 ]
54:1210(106)AR
The decision of the Authority follows:


54 FLRA No. 106

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

0-AR-2766

_____

DECISION

September 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Janet L. Gaunt filed by the U.S. Department of Health and Human Services (Agency or HHS) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator determined that HHS Regional Offices (Regional Offices) violated the parties' collective bargaining agreement by failing "to take all reasonable actions to encourage the use of public transportation, by offering public transit subsidies to employees" for a specified period in accordance with the collective bargaining agreement, and by failing to "provide the Union with the documentation in accordance with . . . the [c]ollective [b]argaining [a]greement to support the claims of some [operating divisions] that funds for transit subsidies were unavailable." Award at 43. To remedy the violation, the Arbitrator awarded retroactive transit subsidies.

For the reasons explained below, we conclude that the Agency's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The Union represents employees in an HHS Multi-Regional unit who are geographically located in 10 Regional offices.(1) Each Regional Office is comprised of operating and/or staff divisions (OPDIVs and STAFFDIVs)(2) that are administratively independent of one another.(3) The Regional Offices, in combination, constitute a single "employer."(4) Award at 2. The bargaining relationship is maintained between the Union's National Office and a Chief Bargaining Official who serves as the principal representative for the regions.

On July 1, 1994, the Union's collective bargaining agreement with the HHS Multi-Regional unit became effective. In Article 62, Section 1, the Employer agreed to "take all reasonable actions within its authority to participate in state and local government programs designed to encourage the use of public transportation by offering public transportation subsidies to the extent permissible by law." Award at 10. The "maximum amount contemplated by the contract was $60.00 per month." Id. at 3. Article 62, Section 7 provides:

The Employer supports the objective of transit subsidies for all employees within the context of mission requirements, limited budgeted resources, and the realization that additional subsidies may impact on other budget items.

A. If the Employer claims the unavailability of funds to pay public transportation subsidies on a national, OPDIV, or regional basis, the Employer will provide the Union (national or local as appropriate) with the documentation to support the claim.

B. If the Employer claims the unavailability of funds to pay public transportation subsidies at any level of the organization, the Union reserves the right to reopen negotiations.

Id. at 11.

Under the agreement, the Employer was required to inform the Union by August 15, 1994, if funds would be available in FY 94 for transit subsidies. In late August 1994, a representative of the Employer informally informed a representative of the Union that no funds would be available. Later, at a September meeting of the Labor Management Relations Partnership Council (LMRPC), the Employer officially informed the Union that no transit subsidy funding would be forthcoming for FY 1994 and that very limited funding was expected for FY 1995. The Employer did not provide any documentation to support its claim.

Another LMRPC meeting was scheduled for December 1994, at which time the parties agreed to discuss the issue of transit subsidies further. Prior to the December meeting, a misunderstanding arose between the parties over the approach for resolving the transit subsidies issue. Thereafter, on November 22, 1994, the Union filed a national grievance alleging that the Employer violated Article 62 "by failing to offer public [transit] subsidies to the extent permitted by law ($60)" for FY 94 and 2 months of FY 95 and by "not notif[ying the Union] that there [were] no funds available . . . ." Id. at 6.

The grievance was submitted to arbitration. The Arbitrator framed the issues as:

Did the Employer take all reasonable actions to encourage the use of public transportation, by offering transit subsidies to employees in accordance with Article 62, Section 1 of the Collective Bargaining Agreement?

Did the Employer provide the Union with documentation to support the claim of unavailability of funds, in accordance with Article 62, Section 7 of the Collective Bargaining Agreement?

If not, what is an appropriate remedy?

Id. at 2.

The Arbitrator first determined that under Article 62, the Employer had to make a reasonable effort to locate funds, including "discretionary funds[,]" and if funds were available, to use such funds to "fund[]" transit subsidies. Id. at 16 and 22. The Arbitrator further determined that "what amounts to a reasonable effort [under Article 62] must be judged in the context of each OPDIV's situation at the time[]" because of the separate budgeting and funding process. Id. at 16. The Arbitrator then made specific factual finding as to each OPDIV and found that: (1) some OPDIVs (ACF, AOA, FDA, PHS, RASC, and SSA) did not take reasonable actions to identify and allocate excess funds; and (2) some OPDIVs (ACF, AOA, FDA, PHS, and SSA) did not provide sufficient documentation to support the claim that funds were not available. The Arbitrator found, therefore, that these OPDIVs violated Article 62, Sections 1 and 7, respectively. The Arbitrator also found that some OPDIVS (HCFA, OCR, and OGC) did not violate Article 62 because these components demonstrated that funds were not available to fund transit subsidies.

Accordingly, the Arbitrator determined that:

[t]he violation of Article 62 by some OPDIVs constituted an unjustified or unwarranted personnel action which resulted in a reduction of the pay, allowances or differentials of members of the [Union's] bargaining unit who were regularly using public transportation for commuting during the relevant period of time. Those members are thus entitled to an award of retroactive transit subsidies in accordance with the Back Pay Act, 5 U.S.C. º5596(b)(1)(A)(i) . . . .

Id. at 40-41.

As her award, the Arbitrator concluded that the Employer did not: (1) "take all reasonable actions to encourage the use of public transportation, by offering transit subsidies to employees in accordance with Article 62, Section 1 of the Collective Bargaining Agreement[;]" and (2) "did not provide the Union with the documentation in accordance with Article 62, Section 7 of the . . . Agreement to support the claims of some OPDIVs that funds for transit subsidies were unavailable." Id. at 43. As relevant here, as an appropriate remedy for the violations, the Arbitrator directed the "Department"(5) to:

(a) ensure that its OPDIVs offer public transportation subsidies to eligible employees . . . [and] (b) make those bargaining unit members who were eligible for transit subsidies whole for the monies they lost; including interest . . . in accordance with the Back Pay Act[.]

Id. (6)

III. Positions of the Parties

A. Agency's Exceptions

First, the Agency contends that the Arbitrator exceeded her authority by finding that Headquarters OPDIVs violated the parties' agreement and by ordering "a retroactive monetary remedy directing those headquarters OPDIVs to pay certain monies for retroactive subsidies[.]" Brief to Exceptions at 8. The Agency asserts that exclusive recognition is with the Regional Offices and only these offices are parties to the agreement. Therefore, the Agency argues that the Arbitrator was empowered to adjudicate and remedy the actions of only these offices. The Agency claims that by directing certain Headquarters OPDIVS to pay retroactive subsidies, the Arbitrator exceeded the limitations of the parties' agreement.

Second, the Agency asserts that the monetary award is contrary to the Back Pay Act, 5 U.S.C. º 5596. The Agency contends that the monetary award requires a waiver of sovereign immunity. The Agency asserts that the Arbitrator did not rely on the Federal Employees Clean Air Incentives Act (Clean Air Incentives Act), Pub. L. No. 103-172, 107 Stat. 1995 (1993), codified at 5 U.S.C. º 7905,(7) in awarding relief and, argues that, even if she had, it provides no authority for awarding monetary relief. The Agency claims that this relief could only be awarded under the Back Pay Act, which the award violates.

According to the Agency, the reference to "benefit" in 5 U.S.C. º 5596(b)(4) is limited to situations involving a "'nondiscretionary, mandatory'" requirement that concerns a promotion, which is not involved in this case. Brief to Exceptions at 17. In support of this argument, the Agency cites Brown v. Secretary of the Army, 918 F.2d 214 (D.C. Cir. 1990) (Brown) and Spagnola v. Stockman, 732 F.2d 908 (Fed. Cir. 1984) (Spagnola). The Agency asserts that, even if Brown and Spagnola applied to other personnel actions, the decision to pay transit subsidies is not set forth in the parties' agreement in a nondiscretionary, mandatory fashion. The Agency contends that the provisions referenced by the Arbitrator require it to take reasonable steps to identify funds and to document any claimed unavailability of funds. The Agency argues that as the violations found by the Arbitrator do not relate to any contractual duty "to pay transit subsidies[,]" the Arbitrator failed to make the necessary finding that "'but for' any contractual violation, the Employer would have paid transit subsidies." Id. at 20 (emphasis in original). Therefore, according to the Agency, the award violates the Back Pay Act.

Additionally, the Agency asserts that the failure to pay transit subsidies did not constitute a withdrawal or reduction in pay, allowances, or differentials within the meaning of the Back Pay Act. According to the Agency, transit subsidies do not constitute "pay, allowances, or differentials," within the meaning of 5 C.F.R. º 550.803, because subsidies are not paid based on the performance of assigned work but, rather, are a means of subsidizing employees' commuting expenses. Id. at 16.

B. Union's Opposition

According to the Union, the Arbitrator did not exceed her authority because the remedial part of the award is responsive to the issues as defined by the Arbitrator. The Union asserts that the Arbitrator did not explicitly or implicitly require the OPDIVs Headquarters to act. The Union also contends that the Arbitrator rejected its assertion that the OPDIV Headquarters were bound by the parties' agreement. The Union asserts that the award affects only employees in the Multi-Regional unit.

The Union argues that transit subsidies fall within the statutory language of "pay, allowances, or differentials." The Union asserts that the Agency misinterprets Brown and Spagnola. The Union states that these cases did not hold that the Back Pay Act provides relief only for promotions, but rather that the Back Pay Act provides relief only for those personnel actions that are nondiscretionary. The Union contends that 5 U.S.C. º 7905 grants agencies the discretion to negotiate certain benefits, and that the parties negotiated Article 62, Section 1. The Union asserts that a plain reading of Article 62, Section 1 "shows that the payment of transportation subsidies is mandatory[,]" and that the parties intended "'to the extent permitted by law'" to mean $60. Opposition at 13.

The Union further contends that the refusal to pay transit subsidies is a "withdrawal or reduction" of a contractually mandated benefit under the Back Pay Act. The Union asserts that the Arbitrator properly interpreted the parties' agreement, analyzed the record, and concluded that the Employer violated the agreement. Further, the Union does not claim that relief is authorized under any other law.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed Her Authority

Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to persons who are not encompassed within the grievance. E.g., U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995).

The Agency's claim that the Arbitrator exceeded her authority with respect to the remedial part of the award is based on its view that the Arbitrator disregarded the limitation on her authority under the parties' agreement. The Agency misinterprets the award. The Arbitrator did not disregard the limitation of the agreement with respect to Headquarters OPDIVs. The Arbitrator specifically found that the Employer--the party to the agreement--had violated Article 62. The remedy contained in the Arbitrator's award is directed to the party to the agreement. The Arbitrator specifically found that the "Employer" violated Article 62 and ordered it "to ensure that its OPDIVs offer public transportation subsidies to eligible employees[]" as set forth in the award. Award at 43. As the Arbitrator's remedy is limited to the party to the agreement, the Agency has not established that the Arbitrator disregarded the limitations of the agreement. Accordingly, we deny this exception.

B. The Award of Retroactive Transit Subsidies Is Not Contrary to the Back Pay Act

1. Retroactive Transit Subsidies

Monetary relief in the form of retroactive transit subsidies has not been addressed previously by the Authority. There is no right to money damages in a suit against the United States without a waiver of sovereign immunity. United States v. Testan, 424 U.S. 392, 402 (1976). In order to waive sovereign immunity, Congress must unequivocally express its desire to do so. U.S. Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association, 52 FLRA 46, 49 (1996) (citing Lane v. Pena, 64 U.S.L.W. 4541 (June 20, 1996) (FAA)). The Government's consent to a particular remedy also must be unambiguous. Id. Absent a waiver of sovereign immunity, the Arbitrator's award of retroactive transit subsidies is contrary to law.

The Clean Air Incentives Act grants agencies the discretion to establish a program to encourage employees to use means other than single occupancy vehicles to commute to or from work. National Federation of Federal Employees, Council of VA Locals and U.S. Department of Veterans Affairs, Washington, D.C., 49 FLRA 923, 933-34 (1994). However, it does not, explicitly or implicitly, require any payment itself. Id. The Back Pay Act does constitute a waiver of sovereign immunity. FAA, 52 FLRA at 49. The question presented, therefore, is whether the relief awarded here is authorized under the Back Pay Act.

Where an agency's exceptions involve the award's consistency with law, we review the questions of law raised by the agency's exceptions and the arbitrator's award de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (U.S. Department of the Army). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. (8)

2. Requirements of the Back Pay Act

The Back Pay Act, 5 U.S.C. º 5596, provides, as pertinent here, that:

(b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination . . . is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee--

(A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect--

(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred[.]

The Authority has held that under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. U.S. Department of Justice, Immigration and Naturalization Service, San Diego, California and American Federation of Government Employees, National Immigration and Naturalization Service Council, 51 FLRA 1094, 1097 (1996) (DOJ) (citing American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991). The Authority has also held that because the second and third requirements require evidence of a causal relationship between the unjustified or unwarranted personnel action and a loss or reduction in pay, allowances, or differentials, backpay is authorized only where the violation resulted in such a loss or reduction. U.S. Department of Transportation, Federal Aviation Administration, New York Terminal Radar Control Facility, Westbury, New York, 54 FLRA 506, 512 (1998) (citing U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 340-41 (1991)); U.S. Department of Veterans Affairs, Medical Center, Kansas City, Missouri and American Federation of Government Employees, Local 2663, 51 FLRA 762, 766 (1996) (VA, Medical Center), request for waiver of time to file motion for reconsideration denied, 52 FLRA 282 (1996).

With respect to the second and third requirements, we take this opportunity to clarify that, to the extent that the framework set forth above suggests that the third or "but for" requirement is a separate, independent element of the Back Pay Act, it is not. An award of backpay under the Back Pay Act is authorized only if an unjustified or unwarranted personnel action "has resulted in" the withdrawal or reduction of an employee's pay, allowances, or differentials. 5 U.S.C. º 5596(b)(1). See also Professional Airways Systems Specialists, MEBA, AFL-CIO v. FLRA, 809 F.2d 855, 858 (D.C. Cir. 1987). Consistent with this requirement, the "but for" step amplifies this statutory language of the Back Pay Act.(9)

a. The Aggrieved Employees Were Affected by an Unjustified or Unwarranted Personnel Action

The Back Pay Act defines "personnel action" as including "the omission or failure to take an action or confer a benefit." 5 U.S.C. º 5596(b)(4). "Unjustified or unwarranted personnel action means an act of commission or an act of omission . . . that an appropriate authority subsequently determines . . . to have been unjustified or unwarranted under applicable law . . . regulation, or mandatory personnel policy established by an agency or through a collective bargaining agreement." 5 C.F.R. º 550.803. Unless an arbitrator finds that an aggrieved employee was affected by an unjustified or unwarranted personnel action, an award of backpay is deficient. Id. A violation of a collective bargaining agreement provision constitutes an unjustified or unwarranted personnel action. Id.

The Arbitrator, an appropriate authority, determined that the Employer did not "take all reasonable actions within its authority to encourage the use of public transportation by offering transit subsidies to employees in accordance with Article 62, Section 1 of the Collective Bargaining Agreement[,]" and "did not provide the Union with the documentation in accordance with Article 62, Section 7 of the . . . Agreement to support the claims of some OPDIVs that funds for transit subsidies were unavailable." Award at 43. The Arbitrator found, therefore, that the Agency violated Article 62, Section 1 and 7 of the parties' agreement. Accordingly, the award demonstrates that the aggrieved employees were affected by an unjustified or unwarranted personnel action and, thus, satisfies the first requirement. See, e.g., DOJ, 51 FLRA at 1097-98; U.S. Department of Health and Human Services, Social Security Administration, Area II, New York Region and American Federation of Government Employees, 48 FLRA 370, 378 (1993).

b. The Contractual Violation Resulted in the Aggrieved Employees' Loss of Transit Subsidies

The Arbitrator determined that Article 62 required the Employer to make a reasonable effort to locate funds, including "discretionary funds[,]" and if funds were available, to use such funds to "fund[]" transit subsidies. Id. at 16 and 22. The Agency asserts that the Arbitrator's statement that the provision of transit subsidies provided in Article 62 "is not a matter of pure arithmetic, but instead allows consideration of competing priorities[,]" demonstrates that Article 62, Sections 1 and 7 do not constitute a mandatory personnel policy under the Back Pay Act that requires the payment of transit subsidies. Read in context, however, this statement recognizes that Article 62 contained a conditional mandate. That is, as she interpreted the provisions, the provisions allowed for consideration of competing priorities. However, if funds over and above what the OPDIVs had already planned for other uses were available, then the Agency was required to provide transit subsidies. Thus, the Arbitrator determined that under certain circumstances Article 62 required the Agency to fund transit subsidies.

The Arbitrator then examined the actions of each OPDIV because each had separate budgetary authority and made specific factual findings as to each. In some cases, the Arbitrator made credibility determinations that affected her assessment of the availability of funds. Concerning such funds, where the Arbitrator found that excess funds were available at an OPDIV,--specifically, ACF, AOA, FDA (FY 94), PHS (FY 94), RASC (FY 94), and SSA--she found a violation. See, e.g., id. at 26-27 (AOA), 28 (FDA), 34 (PHS), 37 (RASC). Where the Arbitrator determined that excess funds were not available at an OPDIV,--specifically, HCFA, OCR, and OGC--she concluded that there was no violation as a result of the OPDIVs' failure to pay transit subsidies. See id. at 29-30 (HCFA), 33 (OGC), 30-31 (OCR). Based on the Arbitrator's interpretation of Article 62, Sections 1 and 7, and her specific factual findings on the availability of discretionary funds, we find that the Arbitrator's factual findings support the conclusion that the failure of the specified OPDIVs to fund transit subsidies "resulted in" the loss of such subsidies by the aggrieved employees, within the meaning of the Back Pay Act. Accordingly, based on these findings, the Arbitrator's determination that the Employer's violation of Article 62, Sections 1 and 7 resulted in the aggrieved employees' loss of transit subsidies is not deficient.

c. Transit Subsidies Constitute Pay, Allowances or Differentials

"Pay, allowances, and differentials" are "monetary and employment benefits to which an employee is entitled by statute or regulation by virtue of the performance of a Federal function." 5 C.F.R. º 550.803. The Authority has concluded that "pay, allowances, or differentials" encompassed by the Act constitute normal legitimate employee benefits in the nature of employment compensation or emoluments which do not embrace a reimbursement payment such as per diem. See, e.g., Department of Defense Dependents Schools, 54 FLRA 259, 265 (1998) (citing Community Services Administration and National Council of CSA Locals, AFGE, AFL-CIO, 7 FLRA 206 (1981)).

In this case, the Arbitrator found that the Employer's violation of the parties' agreement resulted in the reduction of the "pay, allowances or differentials of [unit] members . . . who were regularly using public transportation for commuting . . . ." Award at 40. The Agency's reliance on Brown and Spagnola as support for its claim that the Arbitrator could not find that employees were entitled to pay under the Back Pay Act is not persuasive. As previously stated, 5 C.F.R. º 550.803 clearly defines unwarranted personnel action to mean mandatory personnel policy established by an agency through a collective bargaining agreement and the Back Pay Act, itself, authorizes relief for violation of a collective bargaining agreement that has "resulted in" the loss of pay, allowances or differentials. As discussed above, the Arbitrator's factual findings support her determination that the Employer's failure to fund transit subsidies in the circumstances presented violated Article 62 and resulted in the aggrieved employees not receiving transit subsidies.

The Agency claims that transit subsidies are a means of subsidizing employees' commuting expenses and, therefore, do not constitute pay, allowances or differentials within the meaning of 5 C.F.R. º 550.803. In U.S. Customs Service, Chicago-O'Hare and National Treasury Employees Union, Chapter 172, 23 FLRA 366, 367-68 (1986) (Customs), the Authority found that personal commuting expenses do not constitute pay, allowances or differentials under the Back Pay Act. Id. at 368. However, Customs is distinguishable from this case. In Customs, which predated the Clean Air Incentives Act, the Authority found that: (1) there was no authorization under law and regulation (the Travel Expense Act and Federal Travel Regulations) for the payment directed by the Arbitrator of the personal commuting expenses for the grievants; and (2) the expenses were not normal, legitimate employee benefits in the nature of employment compensation or emoluments.

In contrast, the Clean Air Incentives Act constitutes explicit Congressional authorization for agencies to provide funds for transit subsidies as involved in this case. The Clean Air Incentives Act permits agencies to subsidize personal commuting expenses in order to improve air quality and to reduce traffic congestion. Options under the subsidy program include transit passes, including cash reimbursements. 5 U.S.C. º 7905(b)(2)(A). Transit pass is defined by 26 U.S.C. º 132(f)(5) (the Internal Revenue Code). 5 U.S.C. º 7905(a)(4). Section 132 of title 26 refers to items listed, including transit pass, as fringe benefits. Additionally, the legislative history of this Act supports a finding that transit subsidies constitute a legitimate monetary or employment benefit.(10) In our view, by enacting the Clean Air Incentives Act, Congress provided a means for agencies and unions to enter into collective bargaining agreements that provide for payment of transit subsidies, and that upon exercising its discretion by agreeing to such a provision, an agency could be required to comply with it as the result of an arbitration proceeding.

Based on the above, we conclude that transit subsidies offered under the Clean Air Incentives Act constitute legitimate employee benefits in the nature of employment compensation or emoluments. Consequently, because the Clean Air Incentives Act permits agencies to subsidize commuting expenses and transit subsidies constitute legitimate employee benefits in the nature of employment compensation or emoluments, this case is different from Customs. Accordingly, we conclude that transit subsidies constitute pay, allowances, and differentials within the meaning of the Back Pay Act.

As the Arbitrator's award satisfies the requirements of the Back Pay Act, we deny the Agency's exceptions.

V. Decision

The Agency's exceptions are denied.


APPENDIX

Pub. L. No. 103-172

Pub. L. No. 103-172 provides as follows:

SECTION 1. SHORT TITLE; PURPOSE

(a) SHORT TITLE.--This Act may be cited as the "Federal Employees Clean Air Incentives Act."

(b) PURPOSE.--The purpose of this Act is to improve air quality and to reduce traffic congestion by providing for the establishment of programs to encourage Federal employees to commute by means other than single-occupancy motor vehicles.

SEC. 2. AUTHORITY TO ESTABLISH PROGRAMS

(a) IN GENERAL.--Chapter 79 of title 5, United States Code, is amended by adding at the end the following:

"º 7905. Programs to encourage commuting by means other than single-occupancy motor vehicles

"(a) For the purpose of this section--

"(1) the term 'employee' means an employee as defined by section 2105 and a member of a uniformed service;

"(2) the term 'agency' means--

"(A) an Executive agency;

"(B) an entity of the legislative branch; and

"(C) the judicial branch;

"(3) the term 'entity of the legislative branch' means the House of Representatives, the Senate, the Office of the Architect of the Capitol (including the Botanic Garden), the Capitol Police, the Congressional Budget Office, the Copyright Royalty Tribunal, the Government Printing Office, the Library of Congress, and the Office of Technology Assessment; and

"(4) the term 'transit pass' means a transit pass as defined by section 132(f)(5) of the Internal Revenue Code of 1986.

"(b)(1) The head of each agency may establish a program to encourage employees of such agency to use means other than single-occupancy motor vehicles to commute to or from work.

"(2) A program established under this section may involve such options as--

"(A) transit passes (including cash reimbursements there-for, but only if a voucher or similar item which may be exchanged only for a transit pass is not readily available for direct distribution by the agency);

"(B) furnishing space, facilities, or services to bicyclists; and

"(C) any non-monetary incentive which the agency head may otherwise offer under any other provision of law or other authority.

"(c) The functions of an agency head under this section shall--

"(1) with respect to the judicial branch, be carried out by the Director of the Administrative Office of the United States Courts;

"(2) with respect to the House of Representatives, be carried out by the Committee on House Administration of the House of Representatives; and

"(3) with respect to the Senate, be carried out by the Committee on Rules and Administration of the Senate.

"(d) The President shall designate 1 or more agencies which shall--

"(1) prescribe guidelines for programs under this section;

"(2) on request, furnish information or technical advice on the design or operation of any program under this section; and

"(3) submit to the President and the Congress, before January 1, 1995, and at least every 2 years thereafter, a written report on the operation of this section, including, with respect to the period covered by the report--

"(A) the number of agencies offering programs under this section;

"(B) a brief description of each of the various programs;

"(C) the extent of employee participation in, and the costs to the Government associated with, each of the various programs;

"(D) an assessment of any environmental or other benefits realized as a result of programs established under this section; and

"(E) any other matter which may be appropriate."

(b) CHAPTER ANALYSIS.--The analysis for chapter 79 of title 5, United States Code, is amended by adding at the end the following:

"7905. Programs to encourage commuting by means other than single-occupancy motor vehicles."

SEC. 3. EFFECTIVE DATE.

This Act and the amendments made by this Act shall take effect on January 1, 1994.

Remedy

The Arbitrator directed the Employer to ensure that its OPDIVs offer transportation subsidies to eligible employees as follows:

ACF: retroactive transit subsidies for July 1994 through May 1995 at the same monthly rate that ACF committed to pay effective June 1995.

AOA: retroactive transit subsidies for July-September, 1994 in whatever pro-rata amount can be covered by the AOA's positive balance in discretionary funds for FY 1994 up to a maximum of $60 per month.

FDA: retroactive transit subsidies for July-September, 1994, in those Regions where [the Union] represented employees are employed, in whatever pro-rata amount can be covered by the FDA's positive balance in discretionary funds for FY 1994 up to a maximum of $60 per month.

PHS: retroactive transit subsidies for July through September, 1994 in whatever pro-rata amount can be covered by the OASH/HRSA positive balance in discretionary funds for FY 1994 up to a maximum of $60 per month.

RASC: retroactive transit subsidies for July through September 1994 in whatever pro-rata amount can be funded by the RASC positive balance in discretionary funds for FY 1994 up to a maximum of $60 per month.

SSA: retroactive transit subsidies for July through September 1994 in whatever pro-rata amount can be funded by the year-end allocation on balances shown on SSA regional expenditure reports for the FY 1994 year end up to a maximum of $60/month. For its violation of Article 62 in FY 1995, SSA is directed to provide transit subsidies retroactive to the beginning of this fiscal year in the amount of $30 per month.




FOOTNOTES:
 

1. This is not a consolidated unit, but one that consists of individual units in which the Union holds exclusive recognition and which the parties treat as a unit for bargaining purposes. Brief to Exceptions, Attachment 2 at 14.

2. Hereafter, the STAFFDIVs and OPDIVs will be referred to collectively as OPDIVs.

3. The Union represents employees in the following OPDIVs of the Regional Offices: (1) Administration for Children and Families (ACF); (2) Administration on Aging (AOA); (3) Food and Drug Administration (FDA); (4) Health Care Financing Administration (HCFA); (5) Office for Civil Rights (OCR); (6) Office of the General Counsel (OGC); (7) Public Health Service (PHS); (8) Regional Administration Support Center (RASC); and (9) Social Security Administration (SSA). Even though SSA became an independent agency in 1995, it continued to be covered by the Union's contract.

4. The Arbitrator identifies the Regional Offices as "Employer" and the U.S. Department of Health and Human Services as "HHS or Department." Award at 1 and 2. However, in her decision, the Arbitrator refers to Department and Employer interchangeably. For purposes of consistency, the Regional Offices will be referred to hereinafter as Employer.

5. Although the Arbitrator used this term, it does not appear that the Arbitrator was referring to parties outside the parties' collective bargaining relationship because, as noted above, the Arbitrator sometimes referred to Employer and Department (HHS) interchangeably. Also, the Arbitrator's description of the parties' Partnership Council as consisting of representatives from both the Union and the "Department" is another indication that the Arbitrator, in using this term, was not referring to a non-party. Id. at 5 n.5.

6. The Arbitrator's specific direction for each OPDIV is set forth in the Appendix to this decision.

7. Pub. L. No. 103-172 is set forth in the Appendix to this decision.

8. See also U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 367 (1996).

9. The Authority has previously stated that it "will not look behind an arbitrator's award in cases where the requisite 'but for' finding is made." E.g., U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 369 (1996) (Commerce). This statement should not be read as suggesting that an arbitrator need not make factual findings in support of such a "but for" finding. Backpay awards must comply with the legal requirements of the Back Pay Act. As such, an arbitrator's award of backpay must be supported b