American Federation of Government Employees, National Council of HUD Locals 222, AFL-CIO (Union) and United States, Department of Housing and Urban Development, Washington, D.C. (Agency)

[ v60 p311 ]

60 FLRA No. 68

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL
OF HUD LOCALS 222
AFL-CIO
(Union)

and

UNITED STATES
DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
WASHINGTON, D.C.
(Agency)

0-AR-3811

_____

DECISION

October 8, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Joseph M. Sharnoff filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied the grievance, which alleged that the Agency violated relevant law and the parties' agreement when it refused to authorize Union representatives on official time to participate in the Agency's telecommuting program. For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant, a Union official entitled to 100 percent official time, submitted an application for participation in the Agency's telecommuting program. The Agency did not respond to the grievant's application, and a grievance was filed. The Agency denied the grievance, finding that it was contrary to law and the parties' agreement for the Agency to authorize Union representatives on official time to telecommute. The Union filed a second grievance, which alleged that the Agency had violated the parties' agreement and 5 U.S.C. § 7116 of the Statute by interpreting Supplement 3, Item 11 of the parties' agreement to not include Union representatives on official time. [n1]  Award at 2. The grievances were combined and submitted to arbitration, where, as relevant here, the Arbitrator framed the issues to be:

Whether . . . the Agency's action in denying [the grievant], a Union official who performs Union representational duties 100 percent of her time, the right to telework, violated the [p]arties' [a]greement, at Supplement 3, [P]aragraph 11.
. . . [D]id the Agency violate the Agreement, law, rule, or regulation, when it directed supervisors in the field to terminate any arrangements which permitted Union representatives to perform Union representational duties while in telework status and, if so, what is the appropriate remedy?

Award at 5.

      The Arbitrator found that Section 359 of Public Law 106-346 (§ 359) requires each executive agency to establish a telecommuting program for eligible employees and charges the Office of Personnel Management (OPM) Director with ensuring that such programs are available to all eligible employees. [n2]  The Arbitrator also found that the legislative history of § 359 defines "telecommuting" as "any arrangement in which an employee regularly performs officially assigned duties at home or other worksite . . . ." Id. at 44. The Arbitrator further found that OPM developed the OPM Telework Manual (the OPM Manual), which adopts the definition of telecommuting set forth in the legislative history of § 359 and provides guidelines to agencies in establishing and [ v60 p312 ] implementing the telecommuting programs required by that section.

      The Arbitrator determined that, by adopting the definition of telecommuting set forth in the legislative history of § 359, OPM intended to limit telecommuting to the performance of "official duties only." Award at 45. The Arbitrator further determined that, under Authority precedent, the "performance of Union representational duties is distinct from the performance of `official agency duties.'" Id. at 45 (citing United States Dep't of Def., Army & Air Force Exch. Serv., Dallas, Tex., 53 FLRA 20 (1997) (AAFES, Dallas)). Based on these determinations, the Arbitrator found that the performance of Union representational duties did not constitute "officially assigned duties" as that term is used in the legislative history of § 359, and specifically adopted in the OPM Manual. He concluded that the Union had failed to demonstrate that § 359 and its legislative history, the OPM Manual, or Authority precedent contemplated "a right for Union representatives to perform Union representational activities [in] telework status" or that "telework was to be made applicable to Union representatives performing Union representational work . . . ." Id. at 40, 48.

      Regarding the parties' agreement, the Arbitrator reviewed the bargaining history of Supplement 3, Item 11 and found that the supplement did not authorize Union representatives on 100 percent official time to perform representational activities while telecommuting. In this regard, the Arbitrator determined that there was no evidence that, during the negotiations resulting in Supplement 3, Item 11 that the parties agreed that "Union representatives could perform Union representational duties on telework status . . . ." Id. at 51. The Arbitrator also determined that the Agency's Telework Program Policy Guide (Agency Guide), which was developed by a joint labor-management committee, specifically referenced the OPM Manual and that there was no indication during the development of the Agency Guide that "the Union ever raised as an issue . . . the performance of Union representational duties . . . while in a telework status." Id. at 24, 51.

      Further, the Arbitrator found that no past practice of permitting Union representatives on official time to telecommute existed within the Agency. In this connection, the Arbitrator determined that the Agency, at the national level, had the authority to interpret and apply the parties' agreement. See id. at 54. The Arbitrator also determined that local supervisors had authorized certain Union representatives on official time to telecommute and that Agency headquarters had approved some Union representatives' telecommuting applications. See id. at 53. The Arbitrator found that, upon discovering that Union representatives on official time had been authorized to telecommute, the Agency, at the national level, ordered local supervisors to discontinue such arrangements. See id. at 17, 53. The Arbitrator concluded that the "individual approval" of "a few" requests of Union officials to perform representational work while in telecommuting status did not demonstrate acquiescence in, or awareness of, a general practice at the national level. Id. at 53-54.

      Based on the foregoing, the Arbitrator denied the Union's grievances.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the award, finding that Union representatives on official time are not authorized to telecommute, is contrary to law because § 359 does not address this issue. See Exceptions at 8. In addition, the Union disputes the Arbitrator's reliance on AAFES, Dallas, and contends that the Arbitrator should have relied on the Authority's decisions in AFGE, Local 3911, 58 FLRA 101 (2002) and NTEU, Chapter 65, 25 FLRA 373 (1987) instead. Further, the Union claims that the Arbitrator's reliance on the OPM Manual is "unwarranted" because the Manual is merely a guide to agencies. Id. at 8-9.

      In addition, the Union contends that the Arbitrator erred in finding that no past practice of authorizing Union representatives on official time to telecommute existed within the Agency. In this regard, the Union claims that the Agency established such a practice by approving Union representatives' telecommuting applications.

B.     Agency's Opposition

      The Agency contends that the Arbitrator did not err in relying on the OPM Manual because OPM is responsible "for issuing guidance and advice to agencies on the interpretation of statutory language." Opposition at 5. The Agency also contends that it would be contrary to law for Union representatives on 100 percent official time to telecommute because telecommuting is limited to the performance of officially assigned duties, and Union representatives on official time do not perform officially assigned duties. See id. at 6. [ v60 p313 ]

      Furthermore, the Agency disputes the Union's claim that the Agency had an established past practice of permitting Union representatives on official time to telecommute. Specifically, the Agency maintains that, under Authority precedent, "[i]f management discovers that one of its personnel practices is unlawful . . . it may terminate [the] past practice . . . and it need not bargain over the decision to terminate . . . ." Id. at 7.

IV.     Analysis and Conclusions

      The Union claims that the award is contrary to § 359, Authority precedent, and the OPM Manual. The Union also claims that the Arbitrator erred in finding that no established practice of permitting Union representatives on official time to telecommute existed within the Agency. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

A.     Section 359 and Authority Precedent

      Section 359 requires executive agencies to "establish a policy under which eligible employees . . . may participate in telecommuting to the maximum extent possible . . . ." Dep't of Transp. & Related Agencies - Appropriations Act, Pub. L. No. 106-346 § 359, 114 Stat. 1356 (2000). "Telecommuting" is defined in the legislative history of § 359 as "any arrangement in which an employee regularly performs officially assigned duties at home or other work site . . . ." See Award at 45; and H.R. CONF. REP. No. 106-940, § 359, at 151 (2000), reprinted in 2000 U.S.C.C.A.N. 1063, 1143.

      The parties cite, and we are otherwise aware of, no basis for a Federal agency to establish a telecommuting program, except pursuant to § 359. Accordingly, we find that Congress intended § 359 to be the sole authority for such programs. Further, in considering § 359 together with its legislative history, it is clear that Congress intended to limit telecommuting to the performance of "officially assigned duties." Although § 359 and its legislative history do not provide a specific definition for the term "officially assigned duties," the Authority has, in a recent decision involving a similar issue, applied its own precedent to determine the meaning of undefined wording in another statute. See United States Dep't of Transp., Fed. Aviation Admin., 60 FLRA 20, 22-23 (2004) (Authority applied own precedent to determine the meaning of "performs work," an undefined term in 5 U.S.C. § 5546(b)). Accordingly, we apply our precedent to determine the meaning of "official agency duties," as used in the legislative history of § 359.

      The Authority has held that the performance of representational duties does not involve the performance of "work" as used in the phrase "technology of performing work" under § 7106(b)(1) of the Statute. See AFGE, Council 214, AFL-CIO, 31 FLRA 1259, 1261-62 (1988). The Authority has similarly held that the performance of representational activities does not involve "work" within the meaning of § 7106(a)(2)(B). See, e.g., AAFES, Dallas, 53 FLRA at 24. The Authority also has determined that, under 5 U.S.C. chapter 43, job performance encompasses the performance of agency-assigned duties and does not include duties performed on behalf of a union. See United States Dep't of Health & Human Servs., Soc. Sec. Admin., Office of Hearings & Appeals, 48 FLRA 357, 364 (1993).

      Consistent with the precedent, we conclude that, just as the performance of representational duties does not constitute agency-assigned duties under 5 U.S.C. chapter 43 or the work of an agency under § 7106 of the Statute, the performance of representational duties does not constitute the performance of "officially assigned duties" within the meaning of § 359. Consequently, § 359 does not apply so as to authorize union representatives on official time to telecommute. As such, the award, finding that Union representatives on official time are not authorized to telecommute, is not contrary to § 359 and its legislative history.

      We reject the Union's claims that the award is inconsistent with AFGE, Local 3911 and NTEU, Chapter 65. In AFGE, Local 3911, there was no argument before the Authority concerning whether union representatives on official time were prohibited by law from telecommuting and, thus, the Authority did not address that issue. In NTEU, Chapter 65, the Authority found that employees on flexible work schedules who were required to attend an agency scheduled labor-management meeting before or after the employee's basic work requirement were permitted to earn credit hours because attendance at such meetings constituted "duty time" and counted toward meeting the employee's basic work requirement under the Federal Employees Flexible and [ v60 p314 ] Compressed Work Schedules Act, 5 U.S.C. §§ 6120-6133. NTEU, Chapter 65, 25 FLRA at 376-77. As NTEU, Chapter 65 concerns basic work requirements under the Work Schedules Act, and does not address whether Union representatives on official time are authorized to telecommute under § 359, the Union's reliance on NTEU, Chapter 65 is misplaced.

      Based on the foregoing, the Union has failed to establish that the award, finding that Union representatives on official time are not authorized to telecommute, is contrary to § 359, its legislative history, or Authority precedent. As such, we deny the exceptions. [n3] 

B.     Past Practice

      An agency is required to fulfill its obligation to bargain in good faith before changing conditions of employment, which may be established by past practice. See United States Dep't of Justice, Executive Office for Immigration Review, Bd. of Immigration Appeals, 55 FLRA 454, 456-67 (1999) (Member Wasserman concurring; Member Cabaniss dissenting on other grounds). In order to establish the existence of a past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. See id. at 456.

      Here, the Arbitrator determined that no established practice of permitting union representatives on official time to telecommute existed within the Agency. See Award at 52. Although the Arbitrator found that local supervisors were aware that union representatives on official time were telecommuting and that Agency headquarters had approved "a few" Union representatives' applications to telecommute, he found that this limited approval did not constitute knowledge or acquiescence at the national level. Award at 53. He also found that, once Agency headquarters discovered that Union representatives on official time were telecommuting, it ordered local supervisors to discontinue such arrangements. See id. at 17, 53.

      The Union's reliance on the Agency's approval of some Union representatives' telecommuting applications does not establish that the practice was consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. The Arbitrator's conclusion to the contrary is consistent with the appropriate standard and the Union points to no other evidence indicating that this conclusion is inconsistent with the record. Accordingly, we deny the Union's exception.

V.     Decision

      The Union's exceptions are denied.



Footnote # 1 for 60 FLRA No. 68 - Authority's Decision

   Supplement 3 of the parties' agreement concerns the Agency's telecommuting program. Supplement 3, Item 11 states that "Union representatives are eligible to participate in the Telework program." Award at 7.


Footnote # 2 for 60 FLRA No. 68 - Authority's Decision

   Public Law 106-346, § 359 states:

Each executive agency shall establish a policy under which eligible employees of the agency may participate in telecommuting to the maximum extent possible without diminished employee performance. Not later than 6 months after the date of the enactment of this Act, the Director of the Office of Personnel Management shall provide that the requirements of this section are applied to 25 percent of the Federal workforce, and to an additional 25 percent of such workforce each year thereafter.

Dep't of Transp. & Related Agencies - Approp