American Federation of Government Employees, Council 236 (Union) and General Services Administration, Federal Supply Service, Auburn, Washington (Agency)

[ v63 p213 ]

63 FLRA No. 82

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 236
(Union)

and

GENERAL SERVICES ADMINISTRATION
FEDERAL SUPPLY SERVICE
AUBURN, WASHINGTON
(Agency)

0-AR-4217

_____

DECISION

April 17, 2009

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross filed by the Union under § 7122 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 a grievance concerning the Agency's cancellation of its agreement with a Union representative that had enabled the representative to telecommute while on official time.

      For the reasons discussed below, we find that the Arbitrator's award is inconsistent with AFGE National Council of HUD Locals 222, AFL-CIO, 60 FLRA 311 (2004) (HUD) and Public Law 106-346 § 359, and set aside the award. In addition, we dismiss the Union's exception regarding unfair labor practices.

II.     Background and Arbitrator's Award

      In January of 2001, the Agency and the grievant, a Union representative using 100 percent official time, entered into a Telework Agreement that permitted the representative to telecommute. In September of 2006, the Agency cancelled the agreement in response to HUD, where the Authority held that Public Law 106-346 § 359 (§ 359) did not authorize union representatives on 100 percent official time to telecommute. The Agency interpreted HUD as prohibiting union representatives on 100 percent official time from telecommuting. After the Agency cancelled the agreement, the Union filed a grievance, which was unresolved and submitted to arbitration.

      The Arbitrator framed the following issues: "Whether FLRA caselaw voids the grievant's Telework Agreement. If so, whether the Agency met its bargaining obligations arising out of the change in the grievant's working conditions." Award at 4.

      The Arbitrator interpreted HUD as prohibiting employees engaged in 100 percent official time from performing their duties while in telework status. Award at 8. As such, the Arbitrator concluded that the Agency's cancellation of the Telework Agreement was proper, and that the Agency was required to bargain only over the impact and implementation of the cancellation of the Telework Agreement, and not over the cancellation of the Telework Agreement itself. Award at 10-11. Accordingly, the Arbitrator denied the grievance. Id. at 11.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that the Arbitrator's award is contrary to law in that it is based on a misinterpretation of HUD. According to the Union, the Arbitrator erred in reading HUD as barring union representatives from serving in telework status while on official time. The Union asserts that § 359 is silent on the issue of whether union representatives on official time may serve in telework status. Exceptions at 2. The Union also distinguishes HUD from the present case on the ground that the telecommuting arrangement in the present case arose under § 7131(d) of the Statute, not § 359. [n1]  Because HUD did not address an arrangement like the one in this case, the Union asserts that HUD does not apply. Id.

      Finally, the Union contends that the Arbitrator should have found that the Agency violated § 7116(a)(1) and (2) of the Statute. The Union asserts that the Agency interfered with the representative's union activities in violation of § 7116(a)(1) of the Statute, by virtue of the fact that the Agency's cancellation of the Telework Agreement affected the manner in which the representative performed her official time. Exceptions at 3. Similarly, the Union asserts that the [ v63 p214 ] Agency discriminated against the representative, in violation of § 7116(a)(2) of the Statute, by virtue of the fact that the Agency's cancellation of the Telework Agreement affected the representative's ability to fulfill her union functions. Id.

B.     Agency's Opposition

      The Agency claims that the Arbitrator's award is consistent with HUD and § 359. The Agency asserts that the Arbitrator correctly concluded that, under HUD, § 359 limits telework status to those who are performing officially assigned duties. Opposition at 5-6. The Agency also argues that the representative's arrangement with the Agency did not constitute a binding past practice that required bargaining prior to a change in the past practice. As such, the Agency argues that it was not required to negotiate over the cancellation of the Telework Agreement. Id. at 7.

      Finally, the Agency asserts that the Union failed to present its unfair labor practice claims to the Arbitrator. Because the Union could have raised its ULP claims previously, but did not, the Agency asserts that the Union cannot now have these claims considered by the Authority. Id. at 7-8.

IV.     Discussion

A.     Preliminary Issue

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., United States Dep't of the Air Force, Air Force Materiel Command, Robbins Air Force Base, Ga., 59 FLRA 542, 544 (2003). The Agency argues that the Authority should not consider the Union's claim that the award violates § 7116(a)(1) and (2) of the Statute because these issues were not presented to the Arbitrator.

      The Union presents no evidence demonstrating that its § 7116-based arguments were raised before the Arbitrator. Further, the record in this case demonstrates that the Union based its grievance on the theory that HUD did not foreclose the Telework Agreement between the Union representative and the Agency. Opposition at 8; Award at 5. Because the issues pertaining to § 7116 violations could have been raised by the Union during the hearing, but were not, we dismiss the Union's exceptions regarding the Agency's alleged unfair labor practices.

B.     The award is 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). Official time for other types of representational duties that are not specifically barred by § 7131(b) is subject to negotiation under § 7131(d), which 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." The legislative history indicates that in addition to the amount of time, § 7131(d) "makes all other matters concerning official time for unit employees engaged in labor-management relations activity subject to negotiation . . . ." United States Dep't of the Air Force, HQ Air Force Materiel Command, 49 FLRA 1111, 1119 (1994) (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). Under § 7131(d), the Authority held that "the location at which official time is to be exercised" is a mandatory subject 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 a union official's performance of representational duties on official time at remote locations is contrary to law, the Agency relies on HUD. 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). Applying this same rationale, the Authority has specifically held that [ v63 p215 ] § 359 does not prohibit union representatives from performing representational duties on official time from remote locations. Id. See, e.g., United States Envtl. Prot. Agency, 63 FLRA 30, 33 (2008).

      In sum, although HUD establishes that Public Law 106-346 § 359 does not authorize union officials to perform representational duties at home, HUD does not prohibit agreements 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 set aside the Arbitrator's a