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60 FLRA No. 68
AFGE, National Council of HUD Locals 222 AFL-CIO and U. S. Dept of Housing and Urban Development, Washington, D.C. (Sharnoff, Arbitrator) 0-AR-3811 (Decided October 8, 2004)
The Arbitrator denied the grievance, which alleged that the Agency violated relevant law and the parties' agreement when it refused to authorize Union representatives on official time to participate in the Agency's telecommuting program. The Authority denied the Union's exceptions.
Section 359 requires executive agencies to establish a policy under which eligible employees may participate in telecommuting to the maximum extent possible. Telecommuting is defined in the legislative history of § 359 as any arrangement in which an employee regularly performs officially assigned duties at home or other work site. In this case, the Union failed to establish that the award, finding that Union representatives on official time was not authorized to telecommute, was contrary to § 359, its legislative history, or Authority precedent.
As to the argument of past-practice, the Authority noted 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. In order to establish the existence of a past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. Here, the Arbitrator determined that no established practice of permitting union representatives on official time to telecommute existed within the Agency. The Union's reliance on the Agency's approval of some Union representatives' telecommuting applications diid 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. The Arbitrator's conclusion to the contrary was consistent with the appropriate standard and the Union pointed to no other evidence indicating that this conclusion was inconsistent with the record. Accordingly, the Union's exception was denied.