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55 FLRA No. 57
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
NEW YORK, NEW YORK
NATIONAL TREASURY EMPLOYEES UNION
April 2, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Cabaniss for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Judith A. La Manna filed by the Agency under section 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 sustained a grievance over the Agency's failure to pay mileage expenses to the grievants and also awarded the grievants interest on the amount owed.
For the reasons discussed below, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, for clarification and resolution of inconsistent holdings.
II. Background and Arbitrator's Award
The grievants were employed in a dual status: part of the year they were employed as Tax Examiners in the Underreporter Unit in Methuen, Massachusetts, and the rest of the year they were employed as Data Transcribers 10 miles away in Andover. [n1] Their post of duty (POD) was listed as Methuen on personnel forms. When the dual positions were established in 1987, the Union and the Agency agreed (the "duals agreement") that the employees would not be entitled to mileage expenses from Methuen to Andover when they worked in Andover.
In 1993, while the grievants were working as Data Transcribers at Andover, the Underreporter Unit in Methuen was abolished. To place the affected employees, the Agency created a Miscellaneous Unit at Andover until permanent, authorized positions became available. The grievants were detailed to the Miscellaneous Unit, and were permanently reassigned there when the unit was organizationally approved.
While they were detailed to the Miscellaneous Unit, the grievants learned that two other employees (not duals) who had been detailed from Methuen were receiving mileage expenses while working at Andover. [n2] The grievants asked for mileage expenses but their requests were denied. They filed a grievance and when it was not resolved, submitted the matter to arbitration.
The parties stipulated the following issue before the Arbitrator:
Did the Agency violate the collective bargaining [a]greement or any applicable law or regulation when the [g]rievants were denied mileage expenses after being detailed to [Andover]? If so, what shall be the remedy?
Award at 2.
The Arbitrator determined that the grievants are entitled to mileage expenses because their POD was Methuen and they had been detailed to Andover. The Arbitrator noted that the fact that they had not received mileage expenses as duals was because of the duals agreement, which was "presumably a quid pro quo" for receiving continued pay at the higher grade for Tax Examiner. Id. at 7. The Arbitrator found that as of the date they were detailed from Methuen to new positions created for them at Andover, the travel terms of the duals agreement ceased to operate.
As her award, the Arbitrator stated:
This grievance is sustained. The Agency violated the collective bargaining [a]greement and/or applicable law and/or regulation when the [g]rievants were denied mileage expenses after being detailed [ v55 p357 ] to [Andover]. Grievants are to be paid for their travel to Andover, using Methuen as their POD[.] They are entitled to interest on the amount owing, in accordance with the provisions of the Back Pay Act. The actions of the Agency do not constitute, in content, intent or tone, an unwarranted personnel action.
Id. at 1.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that, unless essential to the transacting of official business, costs incurred by Federal employees for transportation between their residences and official duty stations [n3] are not payable under law (the Federal Travel Expense Act) and regulation (the Federal Travel Regulations) (FTRs). The Agency argues that the Union's and the Arbitrator's reliance on the employees' POD designation as a basis warranting mileage expense reimbursement is misplaced. The Agency asserts that because the employees were already working at Andover, that was their official duty station and, therefore, the Agency was not authorized to reimburse employees for their mileage expenses.
The Agency argues that the Back Pay Act authorizes payment only when an appropriate authority finds that an employee was affected by an unjustified or unwarranted personnel action. The Agency contends that because the Arbitrator specifically found that the Agency did not commit an unwarranted personnel action, the Back Pay Act does not apply and does not provide authorization for the payment of interest.
B. Union's Opposition
The Union asserts that Methuen was the employees' POD and that the employees were entitled to travel reimbursement in accordance with the parties' collective bargaining agreement and Agency regulations during their detail to Andover. [n4] According to the Union, although the Arbitrator acknowledged that the Agency is afforded certain discretion to limit travel pay, because the Agency exercised its discretion to reimburse certain other employees detailed from Methuen to Andover for their mileage expenses, the Agency had to provide the same reimbursement for the grievants (the former duals). The Union also contends that the Arbitrator's award is consistent with law and the decisions of the Comptroller General.
IV. Analysis and Conclusions
A. Whether the Award Is Contrary to the Travel Expense Act, 5 U.S.C. § 5701 et seq. and the Federal Travel Regulations, 41 C.F.R. Chapter 301
The Agency excepts to the award on the basis that it is inconsistent with law and the FTRs. In circumstances where a party's exceptions involve an award's consistency with law, we review the question of law raised by the Arbitrator's award and the party's exception de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (NTEU Chapter 24) (citing U.S. Customs Service, v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The general rule is that normal home-to-work commuting is not travel on official business of the Government and an employee's expense for normal commuting is not reimbursable by an agency. See American Federation of Government Employees, Local 3006 and U.S. Department of Defense, National Guard Bureau, State of Idaho, Office of the Adjutant General, 47 FLRA 155, 160 (1993) and cases cited therein. That is, an employee is responsible for his or her travel from home to work.
Here, the Arbitrator found that the Agency had violated law, regulation, or the parties' collective bargaining agreement when the grievants were denied mileage expense reimbursement after being detailed to Andover. However, the Arbitrator did not specify what law, regulation or agreement provision was violated. We note that the Agency argues, among other things, that the award is inconsistent with the Travel Expense Act, which pertains to travel on Government business. Although home to work commuting generally does not constitute travel on Government business, without specific legal conclusions from the Arbitrator, we are unable to determine whether the award is consistent with the Travel Expense Act, or some other law or regulation. [n5] [ v55 p358 ]
Moreover, the Arbitrator did not enumerate the factors considered in making the determination that the grievants' POD was Methuen rather than Andover, where they worked on a full-time basis. The Arbitrator noted that Methuen was listed as the employees' POD on Standard Form 52. While this may be one factor the Arbitrator relied on in making this determination, the Arbitrator did not indicate how she concluded that Methuen was the POD consistent with Government-wide regulations and Comptroller General decisions. See, e.g. Comptroller General Decision B-198887 (September 21, 1981) (unpublished). Accordingly, we remand the issues of the legal basis of the award and the POD determination to the parties for resubmission to the Arbitrator, absent settlement, for clarification.
B. The Payment of Interest Under the Back Pay Act
As stated above, where an agency's exception involves the award's consistency with law, we review the questions of law raised by the agency's exception and the Arbitrator's award de novo. See NTEU Chapter 24. The Agency argues that the Arbitrator's award of interest under the Back Pay Act is inconsistent with the Arbitrator's conclusion that no unwarranted personnel action occurred. [n6]
The Authority has held that under the Back Pay Act, 5 U.S.C. § 5596(b), as amended, an employee who is found to have been subjected to an unwarranted personnel action that has resulted in a withdrawal or reduction in compensation is entitled to interest on any backpay award. See, e.g., National Border Patrol Council, Local 2913 and U.S. Department of Justice, Immigration and Naturalization Service Border Patrol, 48 FLRA 657, 658 (1993). The Authority has long held that under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218-19 (1998). A violation of law, regulation, or a collective bargaining agreement, which violation the Arbitrator found, can constitute an unjustified or unwarranted personnel action under the Back Pay Act.
The Arbitrator explicitly found that no unwarranted personnel action occurred. See Award at 8. Yet, after finding that no unwarranted personnel action occurred, the Arbitrator awarded the grievants interest under the Back Pay Act for commuting expenses. However, the Back Pay Act requires that the aggrieved employee be affected by an unwarranted personnel action regarding pay, allowances, or differentials to receive interest.
There is an internal inconsistency in the award. Specifically, the Arbitrator awarded interest under the Back Pay Act while finding that no unwarranted personnel action occurred. Therefore, we remand the question of interest payment to the parties for resubmission to the Arbitrator, absent settlement, for clarification and resolution of the inconsistent holdings.
We remand the award to the parties for resubmission to the Arbitrator, absent settlement, for clarification and resolution of inconsistent holdings, consistent with the above.
Footnote # 1 for 55 FLRA No. 57
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Footnote # 5 for 55 FLRA No. 57
The award does not disclose whether Agency rules or regulations affect this matter. We note that the Authority considered an arbitration award which found that the same Agency had established as a commuting area a radius of 40 miles from an employee's office and residence. See U.S. Department of the Treasury, Internal Revenue Service, Brooklyn District and National Treasury Employees Union, Chapter 53, 41 FLRA 1295, 1296 (1991).
Footnote # 6 for 55 FLRA No. 57
We address the Back Pay Act only in connection with the award of interest; as noted above, we are remanding the determination as to the source of any award of mileage expense to the parties for resubmission to the Arbitrator, absent settlement.