U.S. Customs Service, Chicago-O'Hare and NTEU Chapter 172 (Authority decision, September 23, 1986)

Final FLRA decision. The Authority modifies the arbitration award. The order concerns an arbitration award. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review of an Authority arbitration order is generally unavailable unless it involves an unfair labor practice under § 7116.

Plain-English summary

Two Customs Service employees sought to exchange work locations. An arbitrator found that the agency violated their agreement by refusing and ordered reimbursement for the employees' extra commuting costs. The Authority left the contract violation finding in place but removed the reimbursement remedy. It held that ordinary travel rules do not pay for personal commuting between home and work. The Back Pay Act did not cover these expenses either, because they were not pay or employment benefits the employees otherwise would have received.

Decision snapshot

• Authority: Back Pay Act, 5 U.S.C. § 5596, and federal travel expense rules.
• Outcome: Award modified to remove reimbursement of commuting expenses.
• Key point: Extra commuting costs caused by a contract violation were not reimbursable under the cited pay and travel laws.

Full text (FLRA public release)

[ v23 p366 ]

23:0366(51)AR

The decision of the Authority follows:

23 FLRA No. 51

U.S. CUSTOMS SERVICE
CHICAGO-O'HARE
Activity

and

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 172
Union

Case No. 0-AR-1076

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator Charles B. Craver filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

The parties submitted to arbitration the issue of whether the failure to permit the grievants to exchange work locations violated the parties' collective bargaining agreement. The Arbitrator determined that the Activity had violated the agreement and sustained the grievance. Noting that each grievant had additional miles added to the distance between home and work as a result of the Activity's improper actions, the Arbitrator as a remedy directed that the grievants be paid for their additional commuting expenses.

III. EXCEPTIONS

In its exceptions the Agency contends that the remedy directing that the Activity pay the additional commuting expenses incurred by the grievants is deficient. Specifically, the Agency maintains that the award of such commuting expenses is contrary to law becasue it is not authorized as reimbursable travel expenses. The Agency further maintains that the award of such expenses is not authorized under the Back Pay Act as an award of backpay. The Agency states that the commuting expenses are not "pay allowances, or differentials" awardable as backpay under the Act.

IV. ANALYSIS AND CONCLUSIONS

We agree with the Agency. There is no provision in any relevant statute or regulation that permits the payment or reimbursement of the additional personal commuting expenses of the grievants as directed by the Arbitrator.

Both the Authority and the Comptroller General have indicated that unless essential to the transacting of Official business, no costs or expenses incurred by Federal employees for transportation between their residences and official duty stations are payable or reimbursable under law and regulation pertaining to travel expenses. Internal Revenue Service, Houston District and National Treasury Employees Union, Chapter 222, 18 FLRA No. 64 (1985); 60 Comp. Gen. 420 (1981); see Travel Expense Act, 5 U.S.C. Section 5701 et seq.; Federal Travel Regulations, 41 CFR part 101-7. Instead, Federal employees must bear all such transportation costs as personal commuting expenses. See IRS, Houston District, slip op. at 2. Accordingly, there is no authorization under law and regulation for the payment directed by the Arbitrator of the additional personal commuting expenses incurred by the grievants.

Similarly, neither the Back Pay Act, 5 U.S.C. Section 5596, nor its implementing regulations, 5 CFR part 550, subpart H, authorize the payment or reimbursement of personal commuting expenses as part of an award of backpay. The Back Pay Act provides the appropriate authority to remedy with an award of backpay an unjustified or unwarranted personnel action that has denied an aggrieved employee "pay; allowances, or differentials" that the employee would have earned or received if the personnel action had not occured. "Pay allowances, and differentials" are defined in 5 CFR Section 550.803 as "monetary and employment benefits to which an employee is entitled by statute or regulation by virtue of the performance of a Federal function." In Community Services Administration and National Council of CSA Locals, AFGE, AFL-CIO, 7 FLRA 206 (1981), the Authority concluded that "pay, allowances, or differentials" encompassed by the Act constitute normal, legitimate employee benefits in the nature of employment compensation or emoluments. 7 FLRA at 209. Accordingly, in this case, we find that additional personal commuting expenses incurred as the result of the Activity's unwarranted action are not proper components of an award of backpay under the Back Pay Act and its implementing regulations. Futhermore, in terms of the Act, the Arbitrator did not find, and it is not otherwise apparent, that the expenses directed by the Arbitrator to be reimbursed are expenses which the grievants "normally would have . .
. received during the period if the personnel action had not occurred." 5 U.S.C. Section 5596(b)(1)(A)(i).

V. DECISION

For these reasons we find that the award of additional personal commuting expenses incurred by the grievants as a result of the Activity's actions is not authorized by governing law and regulation and therefore is dificient and must be modified. Accordingly, the award is modified by striking the second sentence of the Arbitrator's award directing the Activity to make whole the two grievants for their additional commuting expenses. /*/

Issued, Washington, D.C., September 23, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

In view of this decision, the Authority need not address the Agency's other contention in its exceptions to the award.