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United States Department of the Treasury, Internal Revenue Service (Agency) and National Treasury Employees Union (Union)

[ v63 p157 ]

63 FLRA No. 61

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

0-AR-4161

_____

DECISION

March 24, 2009

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to two awards of Arbitrator Roger I. Abrams 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.

      In an award on the merits ("Initial Award"), the Arbitrator found that the Agency violated law and the parties' agreement by denying requests for Union representatives to perform representational duties while telecommuting. The Arbitrator retained jurisdiction to determine the appropriate remedy. In an award on the remedies ("Supplemental Award"), the Arbitrator granted the Union's request for various remedies, including backpay and expenses

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

II.     Background and Arbitrator's Awards

      Following the Agency's decision to bar Union representatives from using official time while telecommuting, the Union filed a grievance alleging that the Agency had violated the parties' agreement and Federal laws and regulations. Initial Award at 2. The grievance was not resolved and was submitted to arbitration. As stipulated by the parties, the issue to be resolved by the Arbitrator was: "Did the Agency[] violate the law, rules, regulations and/or contract provisions when it denied requests for [U]nion representatives to perform representational duties? If so, what shall be the remedy?" Id.

      The Arbitrator determined that the parties had a contractually established telecommuting program. Id. at 3. He also found that the parties had a past practice of allowing Union representatives to perform representational duties while telecommuting and that this practice had been formalized in the parties' previous agreement. Id. at 4. During negotiations over a new agreement, the parties discussed the practice in light of the Authority's decision in American Federation of Government Employees, National Council of HUD Locals 222, 60 FLRA 311 (2004) (HUD). Id. at 4-5. The Arbitrator found that the parties resolved the issue by verbally agreeing that the new contract would be silent on the use of official time by telecommuters, but that the Agency would "take no action to change the practice." Id. at 6-7, 13-14.

      Shortly before the new agreement took effect, the Agency notified its time coordinators nationwide that Union representatives would no longer be allowed to use official time while telecommuting. Id. at 7. In the Initial Award, the Arbitrator concluded that this action violated the parties' verbal and written agreements. Id. at 14. In this connection, the Arbitrator found that the Authority's decision in HUD did not render the agreements unlawful because HUD did not "require an agency to affirmatively abolish an existing past practice of permitting union representatives on official time to telecommute." Id. at 14, 16 (emphasis omitted). He also indicated that Public Law 106-346, § 359 (§ 359) did not state that employees could "only perform `officially assigned duties' while telecommuting."  [n1]  Id. at 17.

      Based on the foregoing, the Initial Award required the Agency to permit Union representatives to use official time while telecommuting and directed the parties to submit supplemental arguments related to the appropriateness of other remedies proposed by the Union. Id. at 24-25. The Arbitrator retained jurisdiction to resolve these outstanding remedial issues. Id. at 26.

      Following receipt of the parties' briefs, the Arbitrator issued the Supplemental Award granting the Union's request for several remedies, including backpay [ v63 p158 ] and reimbursement for reasonable expenses. Supplemental Award at 5-6. The Arbitrator noted, however, that the Union was required to provide information to the Agency as to the individuals to whom backpay and expense reimbursement would apply and the amounts to which they would be entitled. He stated that "if . . . Union officials did not suffer any monetary loss, then there shall be no recovery." Id. at 6. The Arbitrator retained jurisdiction to facilitate the implementation of the ordered remedies. Id. at 10.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the Initial Award is contrary to law regarding telecommuting and past practice. In the alternative, the Agency contends that the remedies of back pay and expenses in the Supplemental Award are contrary to law.

      The Agency argues that the Arbitrator's Initial Award is contrary to the Authority's holdings in HUD. Exceptions at 8. In this regard, the Agency contends that HUD establishes that "union officials may not legally perform representational duties while [telecommuting]." Id. at 10. The Agency also argues that the Initial Award is contrary to Authority precedent regarding past practice, which, according to the Agency, establishes that parties are not bound to continue practices that are unlawful or illegal. Id. at 11. According to the Agency, the practice of allowing Union representatives to use official time while telecommuting is contrary to § 359. Id. at 12.

      In regard to the Arbitrator's Supplemental Award, the Agency argues that making employees whole for time used to perform nonduty activities, including representational activities, is contrary to, 5 U.S.C. § 5541, et seq., which governs premium pay for Federal employees. [n2]  Id. at 14. In this connection, the Agency maintains that the affected employees have already been compensated for all time worked and that compensating them for nonduty time would be equivalent to paying them overtime. Id. The Agency argues that overtime lawfully may be paid only for "hours of work," which do not include the performance of representational duties. Id. (citations omitted).

      The Agency further argues that, to the extent the remedy of expenses could require payment for commuting costs, it is contrary to law. Id. at 15. The Agency states that, because the Arbitrator "fail[ed] to specify what . . . reasonable expenses are or even what [they] could be[,]" it could "only speculate" as to what the Union would claim. Id.

B.     Union's Opposition

      The Union argues that nothing in HUD or § 359 affects existing telecommuting programs, such as that in place at the Agency, or prohibits "arrangements" under which Union representatives perform representational duties while telecommuting. Opposition at 13-14. According to the Union, the right of its representatives to use official time while telecommuting is derived from past practice and the parties' agreements. Id.

      In regard to the remedies ordered by the Arbitrator in the Supplemental Award, the Union asserts that Authority precedent establishes that backpay, paid at a straight-time rate, is the appropriate remedy when official time has been wrongfully denied and representational duties are performed on nonduty time. Id. at 20-21 (citations omitted). Therefore, according to the Union, the Agency's exception should be denied. The Union also asserts that the Agency's exception related to the remedy of expenses is "premature" as the Union had not submitted any claims prior to the time the Agency filed its exceptions. Id. at 24. The Union argues that the Agency will have the opportunity to raise objections as to the legality of any claimed expenses before the Arbitrator during the implementation of the award. Id.

IV.     Preliminary Matter

      As noted above, the Union argues in its Opposition that the Agency's exception to the Supplemental Award of expenses is "premature" because no specific expenses have been claimed by the Union or awarded by the Arbitrator. To the extent that this could be construed as an argument that the Arbitrator's awards are interlocutory, we deny the argument.

      Section 2429.11 of the Authority's Regulations provides, in relevant part, that "the Authority . . . ordinarily will not consider interlocutory appeals." Accordingly, the Authority ordinarily will not resolve exceptions to an arbitration award unless the award constitutes a complete resolution of all of the issues submitted to arbitration. See, e.g., United States Dep't of Transp., FAA, Washington, D.C., 60 FLRA 333, 334 (2004). An award is not interlocutory where an arbitrator retains jurisdiction solely to assist the parties in the [ v63 p159 ] implementation of awarded remedies. See, e.g., United States Dep't of the Air Force, Kirtland Air Force Base, Air Force Materiel Command, Albuquerque, N.M., 62 FLRA 121, 123 (2007) (Kirtland AFB) (award is final where arbitrator retained jurisdiction to assist parties in determining amount of awarded backpay and benefits) ; United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, 55 FLRA 152, 158 (1999) (award is final where arbitrator retains jurisdiction to assist parties in determining back pay and interest).

      The awards here resolved all of the issues submitted to arbitration. In this regard, the Initial Award ruled on the merits of the Union's claim and the Supplemental Award provided remedies. As in Kirtland AFB, the only matter left unresolved, and the only matter on which the Arbitrator retained jurisdiction, was the amount of back pay and expenses, if any, to be paid by the Agency. See Kirtland AFB, 62 FLRA at 123. Accordingly, we find that the Supplemental Award is not interlocutory.

V.     Analysis and Conclusions

      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.

A.     The award is not contrary to Public Law 106-346, § 359 and Authority precedent.

      As the Authority explained in HUD, § 359 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 using official time while telecommuting because it has no connection to the issue of official time. Id.

      In recent cases, the Authority has emphasized that neither HUD nor § 359 bars union representatives from using official time while telecommuting. See United States Envtl. Prot. Agency, 63 FLRA 30, 33 (2008) (EPA) ("§ 359 . . . does not prohibit union representatives from performing representational duties on official time from remote locations") (emphasis in original); United States Dep't of Agric., Food Safety & Inspection Serv., 62 FLRA 364, 367 (2008) ("§ 359 . . . does not prohibit union representatives from performing representational duties on official time in their homes"). As the Arbitrator's Initial Award accords with Authority precedent on this matter, we find that the Agency has not established that it is contrary to § 359 or HUD and we deny the Agency's exception. For the same reason, we deny the Agency's exception that the practice of allowing the use of official time while telecommuting is contrary to law. We note, in this regard, that the Agency does not contest the Arbitrator's finding that the parties had a past practice, which they verbally agreed to continue, of allowing Union representatives to use official time while telecommuting.

B.     The remedy of backpay is not contrary to law.

      The Agency argues that the Arbitrator's Supplemental Award would provide overtime for nonduty time, which is unlawful under 5 U.S.C. § 5541, et seq. Exceptions at 14.

      The Authority has held that, when official time is wrongfully denied and representational activities are performed on nonduty time, § 7131(d) of the Statute "entitles the aggrieved employee to be paid at the appropriate straight-time rate[.]" United States Dep't of Transp., FAA., Sw. Region, Fort Worth, Tex., 59 FLRA 530, 532 (2003). Applying the foregoing, the Authority has previously rejected arguments similar to those asserted by the Agency in this case. In particular, the Authority rejected an argument that backpay was inappropriate where an employee, who was denied compensation for official time that she worked on nonduty time, had performed and been compensated for her normal duties. United States Dep't of Agric., Rural Dev., Wash., D.C., 60 FLRA 527, 529 (2004) (Rural Dev.) The Authority found that the employee was entitled to backpay because she performed "[twenty-five] hours of [a]gency work she should not have been required to perform and was not paid any amount for performing the [twenty-five] hours of duties for which she was improperly denied official time." Id.

      [ v63 p160 ] In this case, the Arbitrator found that employees who used nonduty time to perform representational activities were entitled to backpay because they were affected by an unjustified or unwarranted personnel action that resulted in a reduction in pay. Supplemental Award at 5. There is no evidence or other basis on which to conclude that the Arbitrator's award of backpay encompassed overtime. Consistent with Rural Development, any employee who performed representational duties during nonduty time and who has not been properly compensated for that work is entitled to backpay at the straight-time rate. See 60 FLRA at 529-30. Accordingly, we find the award for backpay is not contrary to law and deny the Agency's exception.

C.     The remedy of expenses is not contrary to law.

      The Agency argues that any award that compensates employees for commuting expenses, or other personal expenses, would be contrary to law. Exceptions at 15. The Agency concedes, however, that it "can only speculate" as to whether such expenses will be claimed in this case. Id. In this connection, the Union has not yet submitted information about claimed expenses, as ordered by the Arbitrator, because of the filing of the present exceptions. See Opposition at 24.

      Under Authority precedent, whether or not an expense may be awarded depends on factors such as whether there is a statutory basis for the award and whether the award is equitable rather than compensatory in nature. See, e.g., United States Dep't of Transp., FAA, 52 FLRA 46, 50 n.6 (1996) (considering whether 5 U.S.C. §§ 7901 and 8101 et seq. permit payment for medical expenses under the Back Pay Act); United States Dep't of Transp., FAA, Nw. Mountain Region, Renton, Wash., 55 FLRA 293, 298-301 (1999) (discussing difference between legal and equitable monetary awards). The Authority will not uphold awards for legal remedies that are not allowed for by statute. See Immigration & Naturalization Serv., Los Angeles Dist., Los Angeles, Cal., 52 FLRA 103, 104-05 (1996). However, nothing in the Supplemental Award requires the Agency to reimburse Union representatives for expenses that are unlawful. In this regard, the Arbitrator merely required the Union to submit expenses and specifically acknowledged that if Union representatives "did not suffer any monetary loss, then there shall be no recovery." Supplemental Award at 6. Accordingly, we deny this exception.

VI.     Decision

      The Agency's exceptions are denied.

Footnote # 1 for 63 FLRA No. 61 - Authority's Decision

   The Arbitrator also found that the Agency's actions constituted an unfair labor practice because they breached the duty to bargain and discriminated against employees based on their union activity. Initial Award at 20. As the Agency did not except to these findings, we do not further address them.

Footnote # 2 for 63 FLRA No. 61 - Authority's Decision

   The relevant portion of this statute provides: "For full-time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or ([for certain types of employees]) in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for [at a premium rate as provided by § 5542 and Subchapter V.]" 5 U.S.C. § 5542(a).