United States, Department of Education, Washington, D.C. (Agency) and American Federation of Government Employees, Council 252 (Union)

[ v61 p307 ]

61 FLRA No. 56

UNITED STATES
DEPARTMENT OF EDUCATION
WASHINGTON, D.C.
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 252
(Union)

0-AR-3929

_____

DECISION

September 30, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members  [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert T. Simmelkjaer filed by the Agency under § 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 concluded that the Agency violated the parties' collective bargaining agreement and law, rule and regulation when it denied the grievant's request to reinstate a flexiplace work schedule that had been implemented pursuant to a flexiplace work agreement with the Agency and was subsequently terminated by the Agency. As relevant here, the Arbitrator directed the Agency to grant the grievant's request to reinstate her flexiplace work schedule.

      For the following reasons, we deny the exceptions.

II.      Background and Arbitrator's Award

      The grievant is an Educational Program Analyst in the Office of Vocational and Adult Education. Her duty station is in Washington, D.C. She travels 4-5 days per month to perform site visits and performs a substantial portion of her work on the telephone. See Award at 4-5.

      The Agency has a flexiplace program which was negotiated with the Union and which is set forth in Personnel Manual Instruction (PMI) 368-1. [n2]  From January 2000 to April 2002, pursuant to a flexiplace work agreement entered into between the Agency and the grievant, the grievant worked a fixed flexiplace schedule ("original schedule") whereby she worked one week per month in Washington, D.C. and three consecutive weeks per month at her residence in South Carolina. See id. at 8, 34.

      In April 2002, the Agency and the grievant agreed to modify her schedule to ensure her physical presence in Washington, D.C., two days each workweek. From April 2002 to August 29, 2002, the grievant worked this modified schedule, under which she worked Mondays and Fridays in Washington, D.C. and worked Tuesdays, Wednesdays and Thursdays at her residence in South Carolina. See id. at 8, 31, 34 and 38.

      On August 29, 2002, the Agency terminated the grievant's modified schedule. The Agency testified that it took this action because the Agency needed her physical presence during the entire workweek in Washington, D.C. See id. at 7.

      The grievant subsequently requested the Agency to reinstate her original schedule. See id. at 5-6. The Agency denied the request, stating that it needed her at least once a week in Washington, D.C. in order for her to participate effectively in team-oriented assignments. See id. at 33, 35, 38. The Union filed a grievance that was not resolved and was submitted to arbitration, where the Arbitrator framed the issue as follows:

Did the Agency violate the [collective bargaining agreement] and/or other law, rule, regulation or policy when it denied [the grievant's] October 2, 2003 request for a fixed Flexiplace Agreement consisting of one week at her Washington, D.C. duty station and three weeks telecommuting from her residence in South Carolina? If so, what shall be the remedy?

Id. at 2.

      The Arbitrator concluded that the Agency violated PMI 368-1 as well as § 359 of Public Law (P.L.) No. 106-346 (Oct. 23, 2000) and Office of Personnel Management (OPM) guidance when it denied the grievant's [ v61 p308 ] request to reinstate her original schedule. Id. at 42. In reaching this result, the Arbitrator found that under § 359 of P.L. No. 106-346 and OPM guidance entitled "Official Duty Station for Location-Based Pay Purposes," the Agency is required to "establish a policy under which eligible employees . . . participate in telecommuting to the maximum extent possible without diminishing employee performance." [n3]  Id. at 28, (quoting § 359 of P.L. No. 106-346 (emphasis added by the Arbitrator)).

      The Arbitrator also found that under the OPM guidance, an agency must change an employee's official duty station to the location of telework, if the employee does not regularly commute at least once a week into the main or reporting office. [n4]  See id. at 40-41. The Arbitrator concluded, in agreement with the Agency, that under the OPM guidance, the reinstatement of the grievant's original schedule would require the Agency to change the grievant's duty station from Washington, D.C. to South Carolina and reimburse her for travel and per diem expenses during her week in Washington, D.C. See id. In this regard, the Arbitrator determined that "OPM guidance has altered the parties' intent as expressed in [PMI 368-1] both with respect to changes in duty stations or . . . the number of days an employee should report to his/her principal office[.]" Id. at 42. The Arbitrator cited Appendix A, Item 6.a. of PMI 368-1, which provides that the official duty station will not change with participation in the flexiplace program and Appendix A, Item 3.a., which provides that "[e]ach work agreement should normally provide for a minimum one day per week in the office[,]" and "allows the supervisor and the employee to negotiate exceptions to the minimum days in the office." Id. at 4, 7 and 37.

      The Arbitrator found that the Union had demonstrated that the grievant's original schedule that allowed her to work one week per month in Washington, D.C. had not had an adverse impact on her performance. Id. at 33, 34, 37. Further, the Arbitrator determined that the Agency's stated "rationale" of the need for the grievant to work one day a week in Washington, D.C. as a basis for denying the grievant's request to reinstate her original schedule was "vague," "speculative," and unsupported by evidence. Id. at 33, 36, 37. The Arbitrator concluded that, "[a]bsent evidence that the [g]rievant's 3:1 flexiplace schedule adversely impacted her performance, the [Agency's] . . . arbitrary limits on flexiplace agreements are [contrary to] law and regulation." Id. at 36. The Arbitrator further found that, in light of the intent of P.L. No. 106-346 and the OPM guidance to maximize flexiplace opportunities, the PMI provision concerning the change in duty station was not "an impediment to flexiplace scheduling" but was intended to be read consistent with the stated objective of increasing flexiplace participation. Id. at 42.

      As a remedy, the Arbitrator directed the Agency to adopt the grievant's original schedule. Id. at 44. He further stated that the parties "may mutually agree to adopt one of the [g]rievant's prior Flexiplace proposals which provided that she would be in the Washington, D.C. principal office once a week such as those schedules delineated in Union Exhibit No. 5b." [n5]  Id. (emphasis in original).

III.     Positions of the Parties

A.      Agency's Exceptions

1.      The award is contrary to law and regulation

      The Agency contends that the award is contrary to law and regulation in the following four respects: (1) it impermissibly interferes with management's right to determine its organization under § 7106(a)(1) of the Statute; (2) it is contrary to the Agency's flexiplace program contained in PMI 368-1; (3) it is not required by OPM guidance; and (4) it misconstrues Section 359 of P.L. No. 106-346. [ v61 p309 ]

      First, with respect to its § 7106(a)(1) argument, the Agency contends that the award effectively requires the Agency to change the grievant's duty station from Washington, D.C. to South Carolina, contrary to Authority precedent which holds that a determination by an agency whether to establish and maintain duty stations in particular locations is an aspect of management's statutory right to determine its organization. Noting that management's rights under § 7106(a)(1) of the Statute are not subject to the "applicable law" exception under § 7106(a)(2), the Agency argues that the Statute does not permit an arbitrator to enforce an external limitation, such as P.L. No. 106-346, on management's right to determine its organization. Additionally, the Agency argues that the award does not enforce a contract provision that was negotiated pursuant to § 7106(b) of the Statute.

      Second, in support of its contention that the award is contrary to the Agency's negotiated Flexiplace Program (PMI 368-1), the Agency asserts that PMI 368-1 is an Agency regulation, even though it was "implemented through collective bargaining between" the Agency and the Union. Exceptions at 6. The Agency contends that the award is contrary to provisions of PMI 368-1 that address how often employees on flexiplace must be in the office and the location of duty stations.

      Third, the Agency contends that the award is not required by OPM guidance. In this regard, the Agency asserts that the OPM guidance does not require management to approve any particular telework schedule and does not invalidate the Agency's requirement in PMI 368-1 that duty stations will not be changed for flexiplace.

      Fourth, as to P.L. No. 106-346, the Agency claims that nothing in that law "imposes any specific obligation on the Agency that would allow an arbitrator to nullify a provision of Agency policy, whether or not it was collectively bargained." Id. at 11. According to the Agency, nothing in the law requires that an employee be provided any particular telecommuting schedule or that an agency change designated official duty stations.

2.      The award fails to draw its essence from the parties' agreement

      The Agency states that, if the Authority concludes that PMI 368-1 is a collective bargaining agreement rather than an Agency policy, then the award fails to draw its essence from this agreement. In this regard, the Agency maintains that the Arbitrator disregarded provisions of PMI 368-1 which specify that official duty stations will not be changed as a result of participation in flexiplace and that employees should normally report to the office at least one day per week.

3.      The Arbitrator exceeded his authority

      Finally, the Agency asserts that, if the Authority concludes that PMI 368-1 is a collective bargaining agreement rather than an Agency policy, then the Arbitrator exceeded his authority by invalidating the portions of the PMI which specify that official duty stations will not be changed as a result of participation in flexiplace and that employees should normally report to the office at least one day per week.

B.      Union's Opposition

      The Union contends that the award does not impermissibly interfere with the Agency's right to determine its organization. The Union asserts that the OPM guidance requires the duty station to be changed upon the reinstatement of the original schedule. Id. at 5. The Union also argues that the award enforces PMI 368 1, which was negotiated under § 7106(b) of the Statute. See Opposition at 5-7.

      The Union also contends that the award does not fail to draw its essence from the negotiated agreement. The Union argues that the Arbitrator interpreted PMI 368-1 to comply with § 359 of P.L. No. 106-346 and OPM guidance. The Union also argues that PMI 368-1, by its wording, does not require an employee to report to the employee's official duty station once a week or require mutual agreement to modify a flexiplace work agreement.

      Finally, the Union argues that the Arbitrator did not exceed his authority by disregarding portions of PMI 368-1.

IV.     Analysis and Conclusions

A.      The Award Does Not Violate the Agency's Right to Determine Its Organization

      When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash. D.C., 53 FLRA 146, 152-53 (1997) (BEP). If the award does not affect management's rights, then the BEP analysis is not required and the exception is denied. See United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000) (VAMC, Coatesville). [ v61 p310 ]

      The Agency argues that under § 7106(a)(1), it has the right to determine where official duty stations will be established and maintained and that the award violates that right by requiring the Agency to change the grievant's duty station from Washington, D.C. to South Carolina. [n6]  However, Authority precedent "does not support the broad and undiscriminating conclusion that, whenever an agency chooses to call the specific location in which employees are assigned to perform their work `an official duty station,' the choice of that location always constitutes an exercise of the right to determine organization under the Statute." NTEU, Chapter 83, 35 FLRA 398, 412 (1990). Rather, in order for its designation of "duty station" to come within the scope of the right to determine organization, the Agency must establish that the "duty station" of the grievant has a direct and substantive relationship to the Agency's administrative or functional structure, including the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. See NTEU, 41 FLRA 1283, 1286, 1287 (1991); NTEU, Chapter 83, 35 FLRA at 413.

      The award would require the Agency to change the grievant's official duty station upon the reinstatement of her original schedule. However, the award does not require the Agency to change the organizational structure of the Office of Vocational and Adult Education, the organizational unit in which the grievant works, or any other organizational units of the Agency. The award also does not require the Agency to change the lines of authority to carry out the work of the Office of Vocational and Adult Education or dictate the distribution of responsibilities within that organizational unit. The grievant would continue to perform the same duties in the same organizational unit. In addition, the Agency had previously determined that the grievant's work could be performed from her residence in South Carolina and the Arbitrator effectively found that there was no reason the grievant could not continue to do so. Indeed, under the Agency's preferred schedule, the grievant would be present in the office no more (and in some months fewer) days than under the schedule awarded by the Arbitrator. It would be unreasonable to conclude that in this situation--where the sole dispute is which particular days in a month the grievant is working in the office--the Agency's right to determine organization is implicated. As such, this case is distinguishable from Local 3509, on which the Agency relies, in which the Authority found that proposals requiring the assignment of positions to different offices affected the right to determine organization. In reaching its result in that case, the Authority noted that the agency had not determined that the work of the position could be performed at those locations.

      We note that in AFGE, AFL-CIO, Local 3805, 5 FLRA 693 (1981) (Local 3805), the Authority determined that a proposal requiring the agency to maintain certain official duty stations and, thus, preventing the agency from eliminating those duty stations, conflicted with the agency's right to determine its organization. The proposal in Local 3805 was subsequently described in NTEU, Chapter 83, 35 FLRA at 412, as directly and substantively related to the agency's administrative structure because the designation of official duty stations was "for purposes of implementing administrative matters, such as reimbursement of travel expenses[.]" In this case, by contrast, the award would have the effect of requiring the Agency, upon reinstatement of the grievant's original schedule, to change her official duty station only for location-based pay--not for organizational-- purposes. There is no precedent supporting a conclusion that the right to determine organization was intended to be read so broadly as to encompass a designation of duty station made solely for location-based pay reasons.

      In sum, we conclude that the award does not affect management's right to determine its organization. As a result, the analysis under BEP is not required. [n7]  See VAMC, Coatesville, 56 FLRA at 971.

      Accordingly, we deny the Agency's exception.

B.      The Agency's Contentions Regarding PMI 368-1 Do Not Establish that the Award Is Deficient

1.     PMI 368-1 Is Not an Agency Regulation

      Although the Agency acknowledges that PMI 368 1 was "implemented through collective bargaining between" the Agency and the Union, the Agency contends that PMI 368-1 should be treated as an Agency regulation and the award is deficient because it is contrary to this Agency regulation. Exceptions at 6. However, the Agency has not established how or why a document that was concededly negotiated should be considered as an Agency regulation, and we decline to do so here. As such, the Agency's claim that the award is contrary to an Agency regulation provides no basis [ v61 p311 ] for finding the award deficient. Rather, PMI 368-1 constitutes a negotiated agreement and we will address the Agency's challenge to the Arbitrator's interpretation and application of PMI 368-1 below in resolving the Agency's "essence" and "exceeded authority" exceptions.

2.     The Award Does Not Fail to Draw its Essence From the Parties' Agreement

      As PMI 368-1 was collectively bargained and constitutes a negotiated agreement, we address the Agency's contention that the award is contrary to PMI 368-1 as a contention that the award fails to draw its essence from this agreement. For an award to be deficient as failing to draw its essence from the parties' agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      Appendix A, Item 3.a. of PMI 368-1 provides that "[e]ach work agreement should normally provide for a minimum of one day per week in the office . . . [and that] [s]upervisors and employees may mutually agree to exceptions to the minimum number of days in the office." Award at 4 (emphasis added). Appendix A, Item 6.a. of PMI 368-1 states that "[f]or pay purposes," the official duty station "will not change with participation in the [f]lexiplace program." Id.

      The Arbitrator applied these provisions and found that, with respect to the number of days an employee should report to the principal office, "the one day a week in the office guideline should not be applied in the instant case" based on several reasons, including the fact that "[t]he Agency's rationale for denying [the grievant's] flexiplace schedule was not grounded in objective or measurable standards[,]" and because the grievant's original schedule did not adversely affect her performance. Award at 37. As a remedy for the Agency's violation of the agreement, the Arbitrator found that the Agency was required to change the grievant's duty station upon reinstatement of the grievant's original schedule. The Arbitrator found that, in light of the intent of P.L. No. 106-346 and the OPM guidance to maximize flexiplace opportunities, the PMI provision concerning the change in duty station was not "an impediment to flexiplace scheduling" but was intended to be read consistent with the stated objective of increasing flexiplace participation. Award at 42. The Agency's argument fails to establish that the Arbitrator's interpretation of the PMI is irrational, unfounded, or implausible, or that it evidences a manifest disregard for the agreement. Thus, the Agency has not established that the award fails to draw its essence from the PMI under the standards set forth above.

      In sum, the award draws its essence from the parties' agreement. Accordingly, we deny the Agency's exception.

3.      The Arbitrator Did Not Exceed His Authority

      As PMI 368-1 was collectively bargained and constitutes a negotiated agreement, we address the Agency's contention that the arbitrator exceeded his 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 by the grievance. See United States Dep't of Defense, Army & Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996).

      The Agency contends that the Arbitrator exceeded his authority by invalidating portions of the PMI. The Agency's exceeded authority exception essentially relies on its claim that the award fails to draw its essence from the agreement. Consistent with our conclusion that the award does not fail to draw its essence from the parties' agreement, we also find that the Agency has not demonstrated that the Arbitrator exceeded his authority. Accordingly, we deny the Agency's exception. See United States Dep't of the Treasury, Internal Revenue Service, 60 FLRA 506, 508 (2004);United States Dep't of Labor, Wash., D.C., 57 FLRA 701, 703 (2002).

C.      The Award Is Not Contrary to the OPM Guidance

      The Agency contends that the award is deficient because it is not required by OPM guidance. In this regard, the Agency asserts that the OPM guidance does not require management to approve any particular telework schedule and does not invalidate the Agency's requirement in PMI 368-1 that duty stations will not be changed for flexiplace.

      The OPM guidance addresses the location of official duty stations for location-based pay purposes. As relevant here, the guidance provides that an agency must change an employee's official duty station to the location of telework when the employee does not regularly commute at least once a week into a main or reporting office. [ v61 p312 ]

      The Agency correctly notes that the OPM guidance does not require it to agree to any particular telecommuting schedule. However, the Agency has not demonstrated that this fact renders the award deficient. In this regard, the OPM guidance does not establish any mandatory schedules with which an award might conflict. Further, with respect to the Agency's ability to determine the location of duty stations, the OPM guidance simply provides that if an employee is on a particular schedule, then the employee's duty station for location-based pay purposes is determined by reference to that schedule. In this respect, the Agency acknowledges that the Arbitrator's determination that the Agency was required to change the grievant's official duty station if the grievant is returned to her original schedule is consistent with the guidance. See Exceptions at 3. ("This requirement to change [the grievant's] duty station stems from [OPM] policy ... that if an employee on telework does not report to his or her office at least once a week, his or her employing agency must change the employee's duty station to the location of the employee's alternate work location. The Arbitrator recognized th[at] fact in his award."). As PMI 368-1 itself provides that employees participating in the flexiplace program shall be treated consistent with applicable OPM regulations, the PMI anticipates that an arbitrator may assess whether the Agency's actions regarding the negotiated flexiplace program comply with the OPM guidance.  [n8] 

      In these circumstances, we find that the Agency has failed to establish that the award is deficient as contrary to the OPM guidance. Accordingly, we deny the Agency's exception.

D.      The Award Is Not Contrary to P. L. No. 106-346

      Section 359 of P.L. No. 106-346 requires executive agencies to "establish a policy under which eligible employees . . . may participate in telecommuting to the maximum extent possible without diminished employee performance." 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 sites geographically convenient to the residence of the employee." See AFGE, Nat'l Council of HUD Locals 222, AFL-CIO, 60 FLRA 311, 313 (2004) (Nat'l Council of HUD Locals 222); and H.R. Conf. Rep. No. 106-940, § 359, at 151 (2000), reprinted in 2000 U.S.C.C.A.N. 1063, 1143 (U.S.C.C.A.N.). The term "eligible employees" is defined in the legislative history as "any satisfactorily performing employee of the agency" whose job can typically performed at least one day per week at an alternate location. U.S.C.C.A.N. at 1143. The Authority has found that Congress intended § 359 of P.L. No. 106-346 to be the sole authority for telecommuting programs. See Nat'l Council of HUD Locals 222, 60 FLRA at 313.

      The Agency argues that it is not required under P.L. No. 106-346 to agree to any particular telecommuting schedule, including the one sought by the grievant, or to agree to change official duty stations. The Agency is correct that the law does not specify particular telecommuting schedules or where official duty stations will be located. However, for the reason discussed above with respect to the OPM guidance, this fact does not demonstrate that the award is contrary to P.L. No. 106-346. Stated otherwise, in order for the award to be found deficient as contrary to P.L. No. 106-346, the award must be found to conflict with a requirement set forth in P.L. No. 106-346. However, nothing in the Agency's argument demonstrates that the award conflicts with any requirement set forth in P.L. No. 106-346. Under P.L. No. 106-346, agencies are required only to "develop criteria to be used in implementing such a policy and ensure that managerial, logistical, organizational, or other barriers to full implementation and successful functioning of the policy are removed." U.S.C.C.A.N. at 1143. The Arbitrator found that the Agency essentially violated its own criteria by terminating the grievant's flexiplace work agreement for reasons that were "vague" and "unconvincing." Award at 33.

      Accordingly, as the Agency has failed to establish that the award conflicts with any requirement set forth in P.L. No. 106-346, the Agency has failed to establish that the award is contrary to law.

V.     Decision

      The Agency's exceptions are denied. [ v61 p313 ]


APPENDIX

1.      Section I of PMI 368-1 provides as follows:

I. GENERAL:
Flexiplace, also known as flexible workplace, work-at-home, telecommuting, and teleworking, refers to paid employment performed away from the office. The program's objective is to allow selected U.S. Department of Education employees to work at alternative work sites on a regularly scheduled basis. As a model workplace initiative, it will attract and retain employees in critical positions, target new labor markets, reduce office space requirements, increase Department flexibility, reduce commutes and help employees meet work and family concerns. In addition, the Flexiplace program is a vehicle to facilitate cost reductions and improve work operations and customer service by increasing employee morale and productivity with the opportunity to perform duties at alternative work sites during an agreed upon portion of their work week.
Flexible locations may include:
  • Employee's home -- working in a space specifically set aside as an office in the employee's residence.
     
  • Satellite facility -- working from an office near the employee's home, in space owned or leased by one or more Federal agencies. . . .
     

Section IV. of PMI 368-1 provides, in pertinent part, as follows:

....
2.      Participation in the Flexiplace program is a benefit, not a right.
....
4.      An employee's participation in the Flexiplace program shall not adversely affect the performance of other employees. Employees will be required to report to their office on scheduled off-site work days if needed and requested by the supervisor. Flexiplace shall not put a burden on staff remaining in the office. An equitable distribution of work must be maintained and methods should be instituted to ensure that employees working in the office do not have to handle the Flexiplace employee's work.
5.       Employees participating in the Flexiplace program shall be treated equally with other employees in decisions which affect conditions of employment for awards, promotions, and/or any other condition of employment consistent with applicable law, OPM regulation, Department policy, and, where applicable, the CBA.

Appendix A of the PMI 368-1 provides, in pertinent part, as follows:

Guidelines
1.      APPROVAL CRITERIA
The decision to offer the employee the opportunity to participate in the Flexiplace program will be made by the approving official or designee and the supervisor, based upon the following criteria:
. . . .
3.      TIME AND ATTENDANCE ISSUES
a.      General
Work away from the office will vary depending upon the individual arrangements between employees and their supervisors. Each work agreement should normally provide for a minimum of one day per week in the office. This will ensure that the employee is available in the office during the week for face-to-face meetings, access to facilities, etc. Supervisors and employees may mutually agree to exceptions to the minimum number of days in the office.
To reduce employee isolation and communication problems, and to facilitate integration of the employee with those in the office, supervisors should ensure that efforts are made to include Flexiplace workers as part of the team. Employees participating in the Flexiplace program need to be aware of what is occurring in the office while they are off-site. For example, Flexiplace employees should be in the office on days when staff meetings are scheduled to be held.
. . . .
6.      PAY ISSUES
a.      Duty Station.
For pay purposes, the "official duty station" is the employee's regular, on-site office and will not change with participation in the Flexiplace program.
. . . . [ v61 p314 ]

Concurring opinion of Chairman Cabaniss:

      I write separately to note I would dismiss per § 2429.5 of our Regulations the Agency's arguments based upon § 7106(a)(1) not being subject to "applicable laws." It seems clear that the Agency knew of the Office of Personnel Management guidance that seems to mandate that the grievant would have to have her duty station changed in the event the grievant was placed on her original flexiplace work schedule. Award at 24. As a result, the Agency had the opportunity to raise this additional argument (based upon the alleged requirement to change the grievant's duty station) before the Arbitrator but did not do so until its exceptions.

      However, to the extent the § 7106(a)(1) exception must be addressed on the merits, I find that our precedent supports the Agency's exception, and I would set aside the award as being contrary to the Agency's right to determine its organization. To be sure, it is true as the majority notes that not every declaration by an agency as to where an employee is assigned to perform work involves a determination under § 7106(a)(1) as to what constitutes an employee's "duty station." For example, in NTEU, Chapter 83, 35 FLRA 398 (1990) (NTEU, Chapter 83), the agency § 7106(a)(1) assertion dismissed by the Authority was based on the agency's allegation that moving employees from one floor of a building to another floor involved the determination of the employees' duty station. Id. at 411. Similarly, in NTEU, 41 FLRA 1283 (1991) (NTEU), the agency § 7106(a)(1) assertion dismissed by the Authority was based on the agency's allegation that allowing employees to choose where to sit at work involved the determination of the employees' duty station. Id. at 1283-84. Thus, it is clear that "Authority decisions concerning the relationship between an agency's right to determine its organization and the designation of official duty stations are closely tied to the specific circumstances involved in each case." Id. at 1287 (citing to NTEU, Chapter 83, 35 FLRA at 412).

      Also as noted by the majority, in order to find that the designation of an employee's duty station falls within an agency's right under § 7106(a)(1), an agency must establish that the "duty station" of an employee has a direct and substantive relationship to an agency's administrative or functional structure (not necessarily both), to include the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. See NTEU, 41 FLRA at 1286, 1287; NTEU, Chapter 83, 35 FLRA at 413. It is true that the designation of the grievant's duty station does not, as the majority finds, involve any direct and substantive relationship to the Agency's functional structure as the award does not require the Agency to change the organizational structure of the grievant's office, it does not require the Agency to change the lines of authority to carry out the work of that office, and it does not affect the Agency's ability to have the grievant continue to perform the same duties in the same organizational unit.

      None of those findings, however, establish much about the Agency's administrative structure. As noted by the majority, the Authority finds a direct and substantive relationship to agency's administrative structure where the designation of an official duty station was "for purposes of implementing administrative matters, such as reimbursement of travel expenses[.]" NTEU, Chapter 83, 35 FLRA at 412, where the Authority discussed its earlier holding in AFGE, AFL-CIO, Local 3805, 5 FLRA 693 (1981). As regards the impact from the award on the Agency's administrative structure, the majority notes the Arbitrator's finding that the change in duty station would require the Agency to reimburse the grievant for travel and per diem expenses during her trip from her home in South Carolina to her organization in Washington, D.C. I presume that if the grievant's duty station was in Washington, D.C., she would not be entitled to reimbursement for travel and per diem expenses traveling between her duty station and her telework location. This would appear to comport with the Authority precedent, noted, supra, holding that such a determination establishes a direct and substantive relationship to the Agency's administrative structure. As a result, to the extent I were to address the Agency's management rights argument on the merits, I would find that the award affects, and impermissibly conflicts with, the Agency's right to determine its organization under § 7106(a).



Footnote # 1 for 61 FLRA No. 56 - Authority's Decision

   The concurring opinion of Chairman Cabaniss is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 56 - Authority's Decision

   The provisions of PMI 368-1 are set forth in the Appendix to this decision. The Arbitrator found that PMI 368-1 is a "policy that was collectively bargained by the parties in 1995" and he refers to its subparts as "contract provisions." Award at 37, 5.


Footnote # 3 for 61 FLRA No. 56 - Authority's Decision

   P.L. No. 106-346, § 359 states, in relevant part:

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 - Appropriations Act, Pub. L. No. 106-346 § 359, 114 Stat. 1356 (2000).


Footnote # 4 for 61 FLRA No. 56 - Authority's Decision

   The OPM guidance, entitled "Official Duty Station for Location-Based Pay Purposes," provides, in pertinent part, as follows:

For an employee who teleworks from an alternate worksite, an agency may designate the employee's official duty station as the location of the employee's main or reporting office, as long as he or she regularly commutes into that office (i.e., at least once a week). The agency must change the employee's official duty station to the location of the telework site (i.e., the location of his or her home, telework center, or other alternate worksite) if the employee does not regularly commute into the main or reporting office, except in certain temporary situations.

Award at 40.


Footnote # 5 for 61 FLRA No. 56 - Authority's Decision

   The record before the Authority does not contain a copy of Union Exhibit No. 5b.


Footnote # 6 for 61 FLRA No. 56 - Authority's Decision

   The Agency also raised management rights below, arguing that a change in duty station "would excessively interfere with managemen