United States Environmental Protection Agency (Agency) and American Federation of Government Employees, Council 238 (Union)

[ v63 p30 ]

63 FLRA No. 13

UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 238
(Union)

0-AR-4126

_____

DECISION

December 12, 2008

_____

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Mattye M. Gandel filed by the Agency under § 7122 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 found that the Agency violated the parties' agreement by unilaterally changing the established past practice of permitting Union officials to perform representational duties at remote locations and by failing to bargain with the Union over a proposal related to this change.

      For the reasons discussed below, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The Agency notified the Union that, "in accordance with section 359 of Public Law 106-346 and [Authority] case law[,]" the Agency could no longer grant official time to individuals performing representational duties while in "telework status[.]" Award at 8 (citation omitted). The Union subsequently submitted a proposed Memorandum of Understanding (MOU) on the issue of telework by Union officials on official time. After the Agency informed the Union that it would not bargain over the issue, the Union filed a grievance, which was unresolved and was submitted to arbitration.

      [ v63 p31 ] As relevant here, the parties stipulated to the following issues, as set forth in the grievance:

1.     Did the Agency . . . breach Article 45, Section 1.A of the [parties' agreement], by not agreeing to negotiate with the Union over its proposed [MOU] addressing the Agency's . . . declaration that Union officials cannot work at remote alternative locations?
2.     Did the Agency's refusal to bargain violate 5 U.S.C. [§] 7116(a)(5) and is [it] therefore an Unfair Labor Practice and a breach of Article 3, Section 1 of the MCBA?
3.     Did the Agency breach Article 6, Section 4 by dictating to Union officials where they can and cannot perform duties?
. . . .
6.     If so, what shall the remedy be?

Id. at 2.

      In her award, the Arbitrator reviewed Public Law 106-346, § 359 and noted that it provides for the establishment of agency policies "under which eligible employees of the agency may participate in telecommuting to the maximum extent possible without diminished employee performance." Id. at 9 (citing Dep't of Transp. & Related Agencies-----Appropriations Act (the Act), Pub. L. No. 106-346, § 359, 114 Stat. 1356 (2000)). The Arbitrator stated that the Conference Report for the Act defines "telecommuting" 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." Id. (citing H.R. Conf. Rep. No. 106-940, § 359, at 151 (2000), reprinted in 2000 U.S.C.C.A.N. 1063, 1143).

      The Arbitrator also reviewed American Federation of Government Employees, National Council of HUD Locals 222, AFL-CIO, 60 FLRA 311 (2004) (HUD), a case relied on by the Agency to support the proposition that, under Public Law 106-346, § 359, telecommuting employees may perform only agency-assigned duties. The Arbitrator found that, contrary to the Agency's interpretation, HUD merely establishes that Public Law 106-346 § 359 creates no independent right for Union officials to perform representational duties while telecommuting. Id. at 10. The Arbitrator stated, however, that HUD did "not prohibit the parties from negotiating such an arrangement." Id. at 11.

      The Arbitrator stated that, under § 7131(d) of the Statute and Authority precedent, the parties were required to bargain over matters of official time Id. at 11-12 (citing United States Dep't of the Air Force, HQ Air Force Materiel Command, 49 FLRA 1111, 1119 (1994) (Air Force)). The Arbitrator found that the parties had previously negotiated a contractual provision in accordance with § 7131(d). In this regard, the Arbitrator noted that Article 6, § 4 of the parties' agreement permitted employees to be granted time away from their work stations to engage in representational duties. Id. at 13. She also found that there was an established past practice of allowing Union officials performing Union duties full-time to work at remote locations. Id. at 14-16. The Arbitrator concluded that neither the contractual provision nor the past practice violated federal law. Id. at 18.

      After determining that the Agency had unilaterally changed an established past practice, the Arbitrator found that it "was required to negotiate when it changed th[is] past practice." Id. at 18. The Arbitrator determined, however, that the Agency had not committed an unfair labor practice (ULP) because its refusal to bargain had not been based on Union animus. Id. at 20. The Arbitrator concluded that the Agency violated Article 6, § 4 of the parties' agreement by unilaterally changing a past practice and Article 45, § 1A by refusing to bargain over the proposed MOU. As a remedy, the Arbitrator directed the parties to "bargain in good faith over the Union's [proposed] MOU." Id. at 21.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the Arbitrator's award is contrary to law because it contravenes Public Law 106-346, § 359. The Agency asserts that the Arbitrator erred in finding that § 359 does nothing more than establish the authority for federal agencies to create telecommuting programs and does not otherwise constrain § 7131 of the Statute. In this regard, the Agency argues that the Conference Report "clearly" limits application of the law to "Agency-assigned duties." Exceptions at 2.

      The Agency also argues that the award is inconsistent with HUD. In this regard, the Agency argues that, in HUD, the Authority upheld the arbitrator's findings that only officially assigned duties could be performed in a telework status. Therefore, according to the Agency, because union representational activities do not constitute officially assigned duties, they may not be performed by employees working at an alternative work site in a telecommuting program. Id.

      [ v63 p32 ] Finally, the Agency asserts that the award is unclear because the Arbitrator did not specify whether she was ordering substantive or impact and implementation bargaining. Id. at 3. In this regard, the Agency explains that it was willing to bargain over the cessation of the performance of official time in conjunction with telecommuting, but that it would not bargain over a proposal that sought the continuation of an unlawful arrangement. The Agency states that, although the Arbitrator found that the Agency did not commit a ULP by refusing to bargain over the proposal, she nonetheless ordered the parties to bargain over the Union's proposal. Therefore, the Agency requests that, if the Authority upholds the Arbitrator's award, then the Arbitrator should clarify whether she ordered substantive or impact and implementation bargaining. Id.

B.     Union's Opposition

      The Union claims that the Arbitrator's findings are correct and that her award does not contravene Public Law 106-346, § 359. In this regard, the Union asserts that § 359 is limited to establishing a policy that allows for the creation of telecommuting programs and does not pertain to collective bargaining agreement provisions regarding official time. Further, the Union states that Congress did not intend to overturn § 7131(d) of the Statute, which governs official time, when it passed the telecommuting provisions in Public Law 106-346. In this connection, the Union argues that, because § 7131(d) of the Statute is controlling, the location of union representative work on official time remains a mandatory subject of bargaining. Opposition at 2 (citing Air Force, 49 FLRA at 1119). Therefore, argues the Union, the parties are free to negotiate over the performance of representational duties from a remote location through collective bargaining. See id. at 3. In further support of its assertion that Public Law 106-346, § 359 was not intended to overturn any labor relations statutes, the Union notes that it does not include the clause "notwithstanding any other provision of law[,]" which would signal the drafters' intent to supersede other laws. Id. at 3-4.

      The Union also asserts that the award is not contrary to HUD, which held that an agency's denial of telework status for a union representative was not contrary to Public Law 106-346, § 359. In this regard, the Union claims that the Authority interpreted § 359 as neither an authorization of, nor a ban on, the performance of representational duties while on a telecommuting program. Id. at 5.

      Finally, the Union states that the Agency has provided no basis for finding that the award is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. Id. at 6. In this regard, the Union asserts that the Arbitrator was clear on the type of bargaining she required and that any ambiguity regarding the type of bargaining has no bearing on the validity of her decision. According to the Union, the Arbitrator simply ordered the Agency to bargain with the Union over its proposed MOU and, as such, the Agency must now bargain. The Union contends that disputes over the negotiability of the proposals or the scope of bargaining can be addressed in other forums. Id.

IV.     Analysis and Conclusions

A.     The award is not contrary to law.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      Union representatives are guaranteed official time for bargaining and certain Authority-related activities. See 5 U.S.C. § 7131(a) and (c). The availability of official time for other types of representational duties that are not specifically barred by § 7131(b) is subject to negotiation under § 7131(d) of the Statute. Section 7131(d) provides that Union representatives in the bargaining unit "shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest." 5 U.S.C. § 7131(d). The legislative history indicates that § 7131(d) makes not only the amount but also "all other matters concerning official time for unit employees engaged in labor-management relations activity subject to negotiation . . . ." Air Force, 49 FLRA at 1119 (quoting H.R. Rep. No. 1403, 95th Cong., 2d Sess. 59, reprinted in Comm. On Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print No. 96-7), at 705 (1979) (emphasis in Air Force). Applying § 7131(d), the Authority held that "the location at which official time is to be exercised" is a mandatory subject [ v63 p33 ] of bargaining. Id. Consistent with this precedent, an agreement allowing Union representatives to perform representational duties on official time while working from remote locations is authorized by the Statute and enforceable unless another law prohibits the agreement. See, e.g., United States Dep't of Agric., Food Safety & Inspection Serv., 62 FLRA 364, 367 (2008).

      In arguing that the established practice of permitting Union officials to perform representational duties on official time at remote locations is contrary to law, the Agency points to Public Law 106-346, § 359 and the Authority's HUD decision. However, as the Authority explained in HUD, § 359 merely sets forth the statutory basis for an agency to establish a telecommuting program for employees to perform "officially assigned duties at home or [an]other work site . . . ." HUD, 60 FLRA at 313 (quoting H.R. Conf. Rep. No. 106-940, § 359 at 151). Relying on longstanding precedent, which holds that the performance of representational duties does not involve the "work" of an agency, the Authority held that § 359 does not provide authorization for union representatives on official time to telecommute. Id. Applying this same rationale, § 359 also does not prohibit union representatives from performing representational duties on official time from remote locations because it has no connection to the issue of official time. Id.

      It is well established that a particular benefit may be created by an agreement between the parties where it is not required to be provided by law. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 107 n.17 (1983); NTEU, 61 FLRA 642, 643 (2006) (noting that parties may agree to permit uniformed employees to wear civilian attire in certain situations, but that there is no right to this benefit). Although HUD establishes that Public Law 106-346, § 359 does not require that union officials be permitted to perform representational duties at home, this holding does not imply that agencies are prohibited from agreeing, pursuant to other authority, to contract terms or practices to that effect. Because § 7131(d) of the Statute authorizes the negotiation of all aspects of official time, and the Agency has pointed to no law which prohibits union officials from performing representational duties from remote locations, we find that the parties' agreement and established practice are not contrary to Public Law 106-364, § 359 or HUD.

      It is also well established that 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,