Community Services Administration (Agency) and National Council of CSA Locals, AFGE, AFL-CIO (Union)

 



[ v07 p206 ]
07:0206(32)AR
The decision of the Authority follows:


 7 FLRA No. 32
 
 COMMUNITY SERVICES
 ADMINISTRATION
 Agency
 
 and
 
 NATIONAL COUNCIL OF CSA
 LOCALS, AFGE, AFL-CIO
 Union
 
                                            Case No. O-AR-221
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR SEYMOUR STRONGIN FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR, THIS DISPUTE CONCERNS THE AGENCY'S
 SCHEDULING OF A FOUR AND ONE-HALF DAY TRAINING PROGRAM.  THE PROGRAM
 BEGAN AT 9 A.M. ON MONDAY MORNING AND ENDED AT NOON ON FRIDAY.
 CONSEQUENTLY, EMPLOYEES FROM OUTSIDE THE WASHINGTON, D.C.  AREA WERE
 REQUIRED TO TRAVEL ON SUNDAY IN ORDER TO ATTEND THE OPENING SESSION.
 THE UNION FILED A GRIEVANCE WHICH WAS ULTIMATELY SUBMITTED TO
 ARBITRATION CLAIMING THAT THE AGENCY'S FAILURE TO CONSIDER THE SUNDAY
 TRAVEL TIME AS COMPENSABLE OVERTIME VIOLATED LAW AND THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT.
 
    THE ARBITRATOR REJECTED THE UNION'S CLAIM THAT THE SUNDAY TRAVEL TIME
 SHOULD HAVE BEEN COMPENSABLE TIME.  HOWEVER, THE ARBITRATOR DID FIND
 THAT THE AGENCY VIOLATED THE AGREEMENT BY NOT SCHEDULING THE TRAINING SO
 AS TO ALLOW EMPLOYEES TO TRAVEL DURING THEIR REGULARLY SCHEDULED
 WORKWEEK.  THUS, THE ARBITRATOR CONCLUDED THAT THE TRAINING SHOULD HAVE
 BEEN SCHEDULED, FOR EXAMPLE, TO START ON A TUESDAY AND END ON THE
 SUBSEQUENT MONDAY.  THEREFORE, HE RULED THAT THE EMPLOYEES LOST AN
 ADDITIONAL TWO DAYS OF PER DIEM PAYMENTS FOR THE SATURDAY AND SUNDAY
 THAT WOULD HAVE INTERVENED IF THE AGENCY HAD SCHEDULED THE TRAINING IN
 ACCORDANCE WITH THE AGREEMENT.  ACCORDINGLY, THE ARBITRATOR SUSTAINED
 THE GRIEVANCE AND DIRECTED IN PERTINENT PART:
 
    (T)HE PAYMENT TO EACH OF THE EMPLOYEES INVOLVED IN THE GRIEVANCE OF
 TWO DAYS' PER DIEM AT
 
    THE RATE PAYABLE AT THE TIME OF THE TRAINING PROGRAM.
 
    THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION. /2/
 
    AS ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO
 APPLICABLE LAW AND REGULATION.  THE AGENCY ARGUES THAT SINCE THE
 EMPLOYEES IN THIS CASE WERE NOT IN A TRAVEL STATUS FOR THE TWO DAYS IN
 QUESTION THE AWARD OF PER DIEM IS WITHOUT BASIS IN ANY LAW OR
 REGULATION.
 
    THE AUTHORITY AGREES.  IN THIS CASE THERE IS NO PROVISION IN ANY
 RELEVANT STATUTE OR REGULATION THAT PERMITS THE PAYMENT OF THE ORDERED
 PER DIEM.  AS NOTED, THE TRAINING SESSION ENDED AT NOON ON FRIDAY AND
 THE EMPLOYEES APPARENTLY RETURNED TO THEIR PERMANENT DUTY STATIONS THAT
 AFTERNOON.  CONSEQUENTLY, THEY WERE NOT IN AN OFFICIAL TRAVEL STATUS ON
 THE SUBSEQUENT SATURDAY AND SUNDAY FOR WHICH THE ARBITRATOR DIRECTED THE
 PER DIEM BE PAID.  IT IS CLEAR UNDER APPLICABLE LAW AND REGULATIONS
 AUTHORIZED EXPENSES INCURRED BY AN EMPLOYEE FOR SUBSISTENCE WHILE IN AN
 OFFICIAL TRAVEL STATUS.  SEE 5 U.S.C. 5701-5709(1976);  FEDERAL PROPERTY
 MANAGEMENT REGULATIONS (FPMR) 101-7, CHAPTER 1, PART 7 (MAY 1973).  THE
 COMPTROLLER GENERAL HAS HELD THAT THE PURPOSE OF PER DIEM IS TO
 REIMBURSE A TRAVELER FOR THE ADDITIONAL COSTS OF MEALS AND LODGING WHILE
 ON TEMPORARY DUTY WHILE STILL MAINTAINING A RESIDENCE AT HIS OR HER
 PERMANENT DUTY STATION AND THAT WHERE SUCH ADDITIONAL EXPENSES DO NOT
 OCCUR, THE BASIS FOR THE SUBSISTENCE ALLOWANCE FAILS AND AN AGENCY MAY
 NOT PAY PER DIEM.  SEE MATTER OF W. PAUL WOODARD, B-185932, MAY 27,
 1976.  THUS, THERE IS NO BASIS UNDER APPLICABLE LAW AND REGULATIONS
 GOVERNING THE PAYMENT OF PER DIEM FOR THE PER DIEM DIRECTED BY THE
 ARBITRATOR IN THIS CASE SINCE NO SUBSISTENCE EXPENSES WERE ACTUALLY
 INCURRED BY THE EMPLOYEES.
 
    IT IS NOTED THAT THE ARBITRATOR DETERMINED THAT HAD THE TRAINING BEEN
 PROPERLY SCHEDULED IN ACCORDANCE WITH THE AGREEMENT THE EMPLOYEES
 WOULD
 HAVE BEEN IN AN OFFICIAL TRAVEL STATUS FOR THE TWO DAYS IN QUESTION AND
 IT WAS ON THIS BASIS AND WITH R