United States Department of the Interior, Bureau of Land Management, Eugene District Office (Activity) and National Federation of Federal Employees, Local 1911 (Union)



[ v06 p401 ]
06:0401(72)AR
The decision of the Authority follows:


 6 FLRA No. 72
 
 UNITED STATES DEPARTMENT
 OF THE INTERIOR, BUREAU
 OF LAND MANAGEMENT,
 EUGENE DISTRICT OFFICE
 Activity
 
 and
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL
 1911
 Union
 
                                            Case No. O-AR-84
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR CARLTON J. SNOW FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER CONCERNS A
 DEMAND OF COMPENSATION FOR TRAVEL TIME FOR PROFESSIONAL EMPLOYEES OF THE
 BUREAU OF LAND MANAGEMENT IN THE EUGENE, OREGON DISTRICT OFFICE WHO ARE
 EXEMPT FROM THE PROVISIONS OF THE FAIR LABOR STANDARDS ACT.  PRIOR TO
 JUNE 1976, THE REGULAR WORKING HOURS FOR THESE EMPLOYEES WERE 7:45 A.M.
 TO 4:15 P.M.  THE EMPLOYEES WERE ALLOWED ONE-HALF HOUR FOR LUNCH WHICH
 RESULTED IN EIGHT HOURS OF COMPENSABLE TIME.  TRAVEL TIME TO WORK SITES
 IN THE FIELD WAS INCLUDED IN THE EIGHT HOURS.  PURSUANT TO A MEMORANDUM
 ISSUED BY THE OREGON STATE DIRECTOR ON JUNE 10, 1976, THE EUGENE
 DISTRICT OFFICE ADOPTED A POLICY OF NOT COMPENSATING EXEMPT EMPLOYEES
 FOR TRAVEL TIME TO AND FROM THE WORK SITES IN THE FIELD FOR AS MUCH AS
 ONE AND A HALF HOURS, OR FORTY-FIVE MINUTES EACH WAY.  CONSEQUENTLY, THE
 EMPLOYEES HAD TO ARRIVE AT HEADQUARTERS AT 7:00 A.M. IN ORDER TO ALLOW
 FOR THE 45 MINUTES OF UNCOMPENSATED TRAVEL TIME EACH WAY.  THE UNION
 FILED A GRIEVANCE CONTENDING THAT THE EXEMPT EMPLOYEES WERE ENTITLED TO
 OVERTIME COMPENSATION FOR THEIR UNCOMPENSATED TRAVEL TIME.  THE
 GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION.  BECAUSE THE PARTIES
 COULD NOT AGREE ON A STIPULATION OF ISSUES, EACH PARTY SUBMITTED ITS OWN
 STATEMENT OF QUESTIONS TO BE RESOLVED BY THE ARBITRATOR.
 
    IN RESOLVING THE MERITS OF THE GRIEVANCE, THE ARBITRATOR OBSERVED
 THAT THE OVERTIME PAYMENTS SOUGHT IN THIS CASE ARE CONTROLLED BY 5
 U.S.C. 5542 WHICH PROVIDES THAT OVERTIME IS TO BE PAID FOR "HOURS OF
 WORK OFFICIALLY ORDERED OR APPROVED" IN EXCESS OF EIGHT HOURS A DAY OR
 40 HOURS A WEEK.  IN TERMS OF THE SITUATION PRESENTED BY THIS GRIEVANCE,
 WHERE EMPLOYEES REPORT TO HEADQUARTERS BEFORE TRAVELING TO A WORKSITE,
 THE ARBITRATOR NOTED THAT UNDER DECISIONS OF THE COMPTROLLER GENERAL,
 THE KEY CONSIDERATION IN DETERMINING WHETHER THE TRAVEL TIME TO THE WORK
 SITE IS COMPENSABLE DEPENDS UPON WHETHER REPORTING TO HEADQUARTERS IS
 INCIDENT TO THE EMPLOYEE'S WORK OR, INSTEAD, WHETHER IT MERELY
 FACILITATES THE EMPLOYEE'S USE OF GOVERNMENT TRANSPORTATION.  ON THE
 BASIS OF THE EVIDENCE PRESENTED AT THE ARBITRATION HEARING, THE
 ARBITRATOR DETERMINED THAT THE EMPLOYEES' REPORTING TO HEADQUARTERS IS
 "INCIDENT TO THE EXEMPT EMPLOYEES' WORK AS PROFESSIONAL EMPLOYEES."
 SPECIFICALLY, HE FOUND THAT THESE EMPLOYEES MAINTAINED DESKS AT
 HEADQUARTERS AND THAT IT WAS NECESSARY FOR THEM TO REPORT TO
 HEADQUARTERS TO COORDINATE THEIR ACTIVITIES WITH OTHER EMPLOYEES,
 RECEIVE MESSAGES, COMMUNICATE WITH SUPERVISORS, OBTAIN AND SECURE
 EQUIPMENT, AND REFUEL VEHICLES.  CONSEQUENTLY, THE ARBITRATOR RULED THAT
 THE ACTIVITY HAD VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 "BY REFUSING TO PAY OVERTIME TO EXEMPT EMPLOYEES WHO DROVE VEHICLES
 DURING NON-WORKING HOURS TO AND FROM ADMINISTRATIVE HEADQUARTERS AND
 THEIR WORKSITE." HE THEREFORE ORDERED THE ACTIVITY TO COMPENSATE THESE
 EMPLOYEES FOR THE OVERTIME LOST AS A RESULT OF THIS VIOLATION, AND HE
 RETAINED JURISDICTION TO RESOLVE ANY PROBLEMS RESULTING FROM THE AWARD.
 
    PURSUANT TO THIS RETENTION OF JURISDICTION, THE UNION SOUGHT A
 CLARIFICATION AS TO WHETHER THE AWARD APPLIED TO EMPLOYEES WHO SPENT
 TIME TRAVELING AS PASSENGERS.  THE ARBITRATOR ISSUED A CLARIFICATION OF
 HIS AWARD AND EXPLAINED:
 
    IT IS THE INTENT OF THE AWARD TO COVER EXEMPT EMPLOYEES WHO SHOULD
 HAVE RECEIVED OVERTIME
 
    PAY FOR TRAVEL TIME TO AND FROM ADMINISTRATIVE HEADQUARTERS AND THEIR
 WORKSITE.  THE AWARD
 
    COVERED EXEMPT EMPLOYEES WHO OPERATED MOTOR VEHICLES AS WELL AS
 EXEMPT EMPLOYEES WHO RODE IN
 
    VEHICLES AS PASSENGERS.
 
    PURSUANT TO SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 5 CFR PART 2425, THE AGENCY FILED EXCEPTIONS TO THE
 ARBITRATOR'S CLARIFICATION OF HIS ORIGINAL AWARD.  THE UNION FILED AN
 OPPOSITION.  /2/
 
    IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY AS ESTABLISHED BY THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY NOTES
 THAT UNDER THE AGREEMENT, "(T)HE ARBITRATOR SHALL ONLY DECIDE THE
 SPECIFIC ISSUE(S) BEFORE HIM/HER." THE AGENCY ARGUES THAT THE QUESTION
 SUBMITTED TO THE ARBITRATOR BY THE PARTIES CONCERNED ONLY THOSE EXEMPT
 EMPLOYEES WHO ACTUALLY DROVE THE GOVERNMENT VEHICLES TO AND FROM THE
 HEADQUARTERS AND THE WORK SITE.  THE AGENCY FURTHER ARGUES THAT THIS WAS
 PRECISELY THE QUESTION TO WHICH THE ARBITRATOR ORIGINALLY RESPONDED WHEN
 HE FOUND A VIOLATION AS TO "EXEMPT EMPLOYEES WHO DROVE VEHICLES." THE
 AGENCY THUS CLAIMS THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY "BY
 EXTENDING THE AWARD TO INCLUDE EXEMPT EMPLOYEES WHO MERELY RIDE IN A
 GOVERNMENT VEHICLE."
 
    THE AUTHORITY WILL FIND AN AWARD DEFICIENT WHEN AN ARBITRATOR EXCEEDS
 HIS OR HER AUTHORITY BY DETERMINING AN ISSUE NOT INCLUDED IN THE SUBJECT
 MATTER SUBMITTED TO ARBITRATION.  FEDERAL AVIATION SCIENCE AND
 TECHNOLOGICAL ASSOCIATION, LOCAL NO. 291, FORT WORTH, TEXAS AND FEDERAL
 AVIATION ADMINISTRATION, FORT WORTH AIR ROUTE TRAFFIC CONTROL CENTER,
 AIRWAY FACILITIES SECTOR, SOUTHWEST REGION, FORT WORTH, TEXAS, 3 FLRA
 NO. 88(1980).  IN THIS CASE, HOWEVER, THE AGENCY FAILS TO DEMONSTRATE IN
 WHAT MANNER THE ARBITRATOR'S AWARD IS DEFICIENT AS IN EXCESS OF HIS
 AUTHORITY.  AS NOTED, THE PARTIES DID NOT AGREE TO STIPULATE THE PRECISE
 ISSUES TO BE ADDRESSED BY THE ARBITRATOR.  INSTEAD, EACH PARTY SUBMITTED
 QUESTIONS WHICH IT FELT WOULD BE DISPOSITIVE OF THE MATTER.  IN VIEW OF
 THE EVIDENCE PRESENTED, THE ARBITRATOR EMPHASIZED THAT "WHAT IS AT ISSUE
 IS TRAVEL TIME, NOT COMPENSATION FOR DRIVING THE VEHICLE." THEREFORE,
 THE ARBITRATOR DETERMINED THAT "(B)OTH PASSENGERS AND DRIVERS ARE
 ENGAGED IN TRAVEL, SO THE RIDES OF BOTH CLASSES OF PERSONS ARE INVOLVED
 IN THE GRIEVANCE." FURTHERMORE, THE ARBITRATOR IN HIS CLARIFICATION
 NOTED THAT THE UNION HAD REPEATEDLY IDENTIFIED THIS DISPUTE AS "EXEMPT
 TRAVEL OVERTIME" AND THAT THERE WAS NO INDICATION THAT THE PARTIES USED
 THE TERM "TO DRIVE" IN A LITERAL AND TECHNICAL SENSE.  CONSEQUENTLY,
 WITH NO AGREEMENT BY THE PARTIES STATING EXPRESSLY THE ISSUES "MARKED
 OUT FOR HIS CONSIDERATION," STEELWORKERS V. ENTERPRISE WHEEL & CAR
 CORP., 363 U.S. 593, 598(1960), THE AGENCY FAILS TO DEMONSTRATE THAT THE
 ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING THAT THE GRIEVANCE
 INVOLVED THE TRAVEL TIME OF BOTH DRIVERS AND PASSENGERS.  SEE ID.; FOOD
 WORKERS LOCAL 56 V. GREAT ATLANTIC & PACIFIC TEA CO., 415 F.2D 185(3D
 CIR. 1969).  THEREFORE, THIS EXCEPTION PROVIDES NO BASIS FOR FINDING THE
 AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
 AUTHORITY'S RULES.
 
    IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR'S
 AWARD IS ARBITRARY AND CAPRICIOUS.  IN SUPPORT OF THIS EXCEPTION, THE
 AGENCY AGAIN MAINTAINS THAT THE STATUS OF RIDERS WAS NOT SUBMITTED AS AN
 ISSUE AND ARGUES THAT THEREFORE THE RECORD DID NOT CONTAIN EVIDENCE ON
 WHICH THE ARBITRATOR COULD HAVE BASED HIS DETERMINATION TO INCLUDE
 RIDERS.  HOWEVER, THE AGENCY FAILS TO DEMONSTRATE THAT THERE WAS NO
 EVIDENCE OR TESTIMONY FOR SUCH AN AWARD.  THE AGENCY'S PRIMARY ASSERTION
 THAT THE RECORD IS "DEVOID OF EVIDENCE" IS DIRECTLY CONTRADICTED BY THE
 ACTIVITY'S POST HEARING BRIEF SUBMITTED TO THE ARBITRATOR.  IN THAT
 BRIEF THE ACTIVITY EXPRESSLY ACKNOWLEDGED BOTH THAT THE UNION "SEEKS
 OVERTIME PAY FOR EXEMPT EMPLOYEES WHO . . . RIDE TO THE FIELD IN A
 GOVERNMENT VEHICLE" AND THAT "(A)T THE HEARING THE SCOPE OF THE
 GRIEVANCE WAS DEFINED TO INCLUDE NOT ONLY (EXEMPT) DRIVERS BUT THOSE WHO
 RIDE." ADDITIONALLY, THE ACTIVITY ALSO CONCEDED THAT "(I)N THE INTEREST
 OF AN EXPEDITIOUS HEARING," IT DID NOT ATTEMPT TO "LIMIT EVIDENCE OR
 OBJECT TO THE INTRODUCTION OF EVIDENCE ON THIS POINT." CONSEQUENTLY, THE
 AGENCY'S SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES.
 
    IN ITS THIRD EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD, AS
 CLARIFIED, IS CONTRARY TO LAW, SPECIFICALLY 5 U.S.C. 5542.  /3/ IN
 SUPPORT OF THIS EXCEPTION, THE AGENCY ARGUES THAT PURSUANT TO SECTION
 5542 THE RIDERS MUST HAVE BEEN PERFORMING WORK AND SUCH WORK MUST HAVE
 BEEN "OFFICIALLY ORDERED OR APPROVED" IN ORDER TO BE COMPENSATED FOR
 THEIR TRAVEL TIME.  CITING CASES THAT "HAVE ADDRESSED THE QUESTION OF
 TRAVEL TIME AS OVERTIME WHERE ALL THE EMPLOYEE OR EMPLOYEES DID WAS
 TRAVEL FROM A HEADQUARTERS SITE TO A WORK SITE," /4/ THE AGENCY CLAIMS
 THAT THE ARBITRATOR FAILED TO CONSIDER LEGAL PRECEDENT PERTAINING TO
 RIDERS AND THAT THE AWARD IS NOT SUPPORTED BY CASE LAW UNDER 5 U.S.C.
 5542.
 
    THE AUTHORITY FINDS THAT THE AGENCY HAS FAILED TO DEMONSTRATE IN WHAT
 MANNER THE AWARD, AS CLARIFIED, IS CONTRARY TO LAW.  AS WAS NOTED, THE
 ARBITRATOR EXPRESSLY OBSERVED THAT OVERTIME PAYMENTS ARE CONTROLLED BY 5
 U.S.C. 5542.  MOREOVER, IN TERMS OF THIS CASE, THE ARBITRATOR NOTED THAT
 UNDER DECISIONS OF THE COMPTROLLER GENERAL, TRAVEL TIME OF EMPLOYEES WHO
 REPORT TO HEADQUARTERS BEFORE TRAVELING TO A WORKSITE IS COMPENSABLE
 WHEN REPORTING TO HEADQUARTERS IS INCIDENT TO AN EMPLOYEE'S WORK.  IN
 PARTICULAR, THE ARBITRATOR RELIED ON THE DECISION OF THE COMPTROLLER
 GENERAL IN 52 COMP.GEN. 446, 450(1973) WHICH RELEVANTLY PROVIDES:
 
    (WHEN EMPLOYEES) ARE REQUIRED TO REPORT FIRST TO HEADQUARTERS AND
 FROM THERE TO TRAVEL TO
 
    THEIR (WORK SITE, AND) (W)HERE THAT REQUIREMENT IS FOR PURPOSES OTHER
 THAN MERELY FACILITATING
 
    THEIR USE OF GOVERNMENT TRANSPORTATION AND IS REGARDED AS WITHIN
 THEIR REGULARLY SCHEDULED
 
    TOURS OF DUTY, INCLUDING REGULARLY SCHEDULED OVERTIME, OR WHERE IT IS
 INCIDENT TO THEIR WORK,
 
    THE TIME IN TRAVEL FROM (THEIR) HEADQUARTERS MAY BE REGARDED AS HOURS
 OF WORK.
 
    APPLYING THIS RULE TO THE FACTS BEFORE HIM, THE ARBITRATOR DETERMINED
 THAT THE EMPLOYEES' REPORTING TO HEADQUARTERS IS "INCIDENT TO THE EXEMPT
 EMPLOYEES' WORK AS PROFESSIONAL EMPLOYEES." SPECIFICALLY, HE FOUND THAT
 THESE EMPLOYEES MAINTAINED DESKS AT HEADQUARTERS AND THAT IT WAS
 NECESSARY FOR THEM TO REPORT TO HEADQUARTERS TO COORDINATE THEIR
 ACTIVITIES WITH OTHER EMPLOYEES, RECEIVE MESSAGES, COMMUNICATE WITH
 SUPERVISORS, OBTAIN AND SECURE EQUIPMENT, AND REFUEL VEHICLES.
 FURTHERMORE, THE ARBITRATOR FOUND UNDER THE AGENCY'S OWN DIRECTIVES THAT
 ACTIVITIES SUCH AS OBTAINING AND SECURING EQUIPMENT AND REFUELING
 VEHICLES EXPRESSLY CONSTITUTED WORK AND THAT IT WAS CLEAR THAT SUCH WORK
 WAS OFFICIALLY ORDERED OR APPROVED.  HE ALSO REJECTED THE ACTIVITY'S
 ARGUMENT THAT ANY ENTITLEMENT SHOULD BE LIMITED SOLELY TO DRIVERS
 BECAUSE HE COULD FIND NO DISTINCTION BETWEEN THE DUTIES OR TRAVEL TIME
 FOR DRIVERS AND RIDERS.  ACCORDINGLY, AS HIS AWARD HE GRANTED
 COMPENSATION TO BOTH.
 
    THE AGENCY HAS NOT ESTABLISHED THAT IN SUCH CIRCUMSTANCES THE
 ARBITRATOR'S AWARD IS CONTRARY TO 5 U.S.C. 5542.  THE AGENCY HAS NOT
 DEMONSTRATED THAT THE ARBITRATOR'S APPLICATION IN THIS CASE OF THE
 DECISION OF THE COMPTROLLER GENERAL IN 52 COMP.GEN. 446(1973) TO FIND
 THE TRAVEL TIME COMPENSABLE IS CONTRARY TO SECTION 5542.  LIKEWISE, THE
 AGENCY HAS PRESENTED NO EVIDENCE AND RESEARCH HAS NOT DISCLOSED THAT A
 LEGAL DISTINCTION FOR PURPOSES OF COMPENSATING TRAVEL TIME EXISTS
 BETWEEN EXEMPT EMPLOYEES WHO DRIVE AND THOSE WHO RIDE.  THE CASE LAW
 CITED BY THE AGENCY IS INAPPOSITE.  IN THOSE CASES, TO THE EXTENT THAT
 THEY INVOLVED EMPLOYEES TRAVELING FROM A HEADQUARTERS SITE TO A WORKSITE
 AS IN THE PRESENT CASE, THE COURTS FOUND THAT THE TRAVEL INVOLVED
 THEREIN WAS "ANALOGOUS TO A SUBURBAN DWELLER'S DAILY COMMUTING" AND
 THEREFORE THE TRAVEL WAS NOT INCLUDABLE IN HOURS OF EMPLOYMENT.
 MOSSBAUER V. UNITED STATES, 541 F.2D 823, 825(9TH CIR.  1976).  THOSE
 CASES THUS FELL WITHIN THE GENERAL RULE THAT WHEN EMPLOYEES REPORT FIRST
 TO THEIR HEADQUARTERS IN ORDER TO FACILITATE THEIR USE OF GOVERNMENT
 TRANSPORTATION TO TRAVEL TO A WORKSITE, THE TRAVEL IS NOT COMPENSABLE.
 SEE BIGGS V. UNITED STATES, 287 F.2D 908 (CT. CL. 1961);  AHEARN V.
 UNITED STATES, 142 CT.CL. 309(1958).  HOWEVER, NONE OF THOSE CASES
 INVOLVED EMPLOYEES BEING REQUIRED TO REPORT FIRST TO THEIR HEADQUARTERS
 TO PERFORM CERTAIN DUTIES INCIDENT TO THEIR WORK.  THE ARBITRATOR IN
 THIS CASE CLEARLY RECOGNIZED THE DISTINCTION BETWEEN EMPLOYEES WHO
 REPORT TO HEADQUARTERS SOLELY TO FACILITATE THEIR USE OF GOVERNMENT
 TRANSPORTATION AND THOSE WHO ARE REQUIRED TO REPORT FIRST TO
 HEADQUARTERS FOR REASONS RELATED TO THEIR WORK.  IN THIS REGARD HE FOUND
 THAT "(T)HE EVIDENCE PRESENTED AT THE ARBITRATION HEARING . . .
 INDICATES THAT REPORTING TO HEADQUARTERS IS INCIDENT TO THE EXEMPT
 EMPLOYEES' WORK AS PROFESSIONAL EMPLOYEES," AND THAT IT "IS NECESSARY
 FOR THEM TO REPORT TO HEADQUARTERS" IN ORDER TO PERFORM VARIOUS TASKS
 REQUIRED OF THEM IN THEIR POSITIONS.  THE AWARD IN NO MANNER DIRECTS THE
 AGENCY TO PAY OVERTIME TO ANY EXEMPT EMPLOYEES OTHER THAN THOSE WHO, AS
 FOUND BY THE ARBITRATOR, ARE REPORTING TO HEADQUARTERS PRIOR TO
 TRAVELING TO THE WORKSITE AND PERFORMING WORK REQUIRED OF THEM IN THEIR
 POSITIONS.  THUS, IN LIGHT OF THESE SPECIFIC FACTUAL FINDINGS BY THE
 ARBITRATOR, THE AWARD IS CONSISTENT WITH COMPTROLLER GENERAL DECISIONS
 A