FLRA DECISIONS

60 FLRA No. 68

TELECOMMUTING ... UNION REPRESENTATIVES ON OFFICIAL TIME

American Federation of Government Employees, National Council of HUD Locals 222, AFL-CIO and U.S. Department of Housing and Urban Development, Washington, DC, 0-AR-3811, October 8, 2004, 60 FLRA No. 68.

Holding

FLRA holds that union representatives on official time are prohibited by law from telecommut-ing because "the performance of representational duties does not constitute the performance of 'officially assigned duties' within the meaning of ' 359 [of Public Law 106-346]."

Summary

The union grieved when the agency had turned down the application of a union official on 100% official time to participate in the agency's telecommuting program. The agency denied the grievance on the ground that it was contrary to both the agreement and law to authorize union representatives on official time to telecommute.

The matter was referred to arbitration and the arbitrator denied the grievance. He found that both Section 359 of Public Law 106-346 (' 359) and its legislative history define "telecommuting" as "any arrangement in which an employee regularly performs officially assigned duties at home or other worksite[.]" He also determined that under FLRA precedent, the Authority distinguished between representational duties and official agency duties. He accordingly found that the performance of representational duties do not constitute "officially assigned duties."

He also found that the agreement and its bargaining history didn't authorize union representatives on 100% official time to perform representational duties while telecommuting. Finally, he rejected the union's claim that there was a past practice permitting union representatives on official time to telecommute. Although a few local supervisors had authorized certain union representatives on official time to telecommute, the agency, at the national level, had ordered the local supervisors to discontinue such arrangements when it learned of them.

FLRA turned down the union's exceptions to the award. In concluding that union representatives on official time are prohibited by law from telecommuting, FLRA said the following:

[I]n considering ' 359 [of Public Law 106-346] together with its legislative history, it is clear that Congress intended to limit telecommuting to the performance of "officially assigned duties."

*******************************

[J]ust as the performance of representational duties does not constitute agency-assigned duties under 5 U.S.C. chapter 43 or the work of an agency under ' 7106 of the Statute, the performance of representational duties does not constitute the performance of "officially assigned duties" within the meaning of ' 359. Consequently, ' 359 does not apply so as to authorize union representatives on official time to telecommute. [Italics added.]

The Authority rejected the union's claim that the award was inconsistent with 58 FLRA No. 20 (where the arbitrator found that the agency did not violate a flexiplace agreement when it concluded that the performance of representational activities didn't constitute agency business within the meaning of the agreement.) It noted that in that case "there was no argument before the Authority concerning whether union representatives on official time were prohibited by law from telecommuting and, thus, the Authority did not address that issue." [Italics added.] And the union's reliance on 25 FLRA No. 27 (involving the negotiability of a proposal under which a union representative attending a labor management meeting scheduled outside the employee's normal hours would earn credit hours) was misplaced. That case, said FLRA, "concerns basic work requirements under the Work Schedules Act, and does not address whether Union representatives on official time are authorized to telecommute under ' 359[.]"

FLRA also rejected the union's claim that the arbitrator erred in not finding a past practice of allowing union reps on official time to telecommute. "The Union's reliance on the Agency's approval of some Union representatives' telecommuting applications does not establish that the practice was consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other."

 

Table of Contents