19:0319(44)AR - INS and AFGE Local 2580 -- 1985 FLRAdec AR

[ v19 p319 ]
The decision of the Authority follows:

 19 FLRA No. 44
                                            Case No. O-AR-815
    This matter is before the Authority on an exception to the award of
 Arbitrator Irving H. Sabghir 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.
    The grievance before the Arbitrator concerned the grievant's claim
 for overtime compensation.  The grievant, an immigration examiner, and
 another employee were directed to report the next day to a detention
 facility to assist in the processing of aliens ordered released from the
 facility by a judge of a U.S. district court.  They were instructed to
 pick up at their duty station a government vehicle and materials needed
 for processing the aliens and to proceed to the facility.  The other
 employee picked up the vehicle and the materials and then picked up the
 grievant at his residence at 4:45 a.m.  The employees proceeded to the
 facility, performed their assignment, and returned to their duty station
 following the completion of the assignment.  When his claim for overtime
 compensation was denied, the grievant filed a grievance that was
 submitted to arbitration.  The Arbitrator acknowledged that the
 grievant's claim was governed by the provisions of 5 U.S.C.
 5542(b)(2)(B) /1/ providing that time spent in a travel status away from
 the official duty station of an employee is not hours of employment
 unless the travel "(ii) is incident to travel that involves the
 performance of work while traveling" or "(iv) results from an event
 which could not be scheduled or controlled administratively." The
 Arbitrator held that the grievant was entitled to overtime compensation
 for the trip to the detention facility under 5 U.S.C. 5542(b)(2)(B)(ii)
 and (iv).  The Arbitrator ruled that the travel to the facility was
 compensable as travel that was incident to travel that involved the
 performance of work while traveling because the grievant transported
 materials essential to the operation.  The Arbitrator reasoned that the
 grievant acted in the nature of a courier and that it would be unfair to
 deny the grievant compensation merely because the "prime reason for
 traveling was to perform work at the temporary station and not transport
 needed materials." The Arbitrator further ruled that the travel was
 compensable as travel that resulted from an event which could not be
 scheduled or controlled administratively.  The Arbitrator reasoned that
 although the central office of the Agency had administrative control of
 how to accomplish the processing mandated by the court order and had
 scheduled the grievant's assignment, the local office and managers of
 the Agency had no administrative control over the assignment and the
 scheduling had been imposed on them.  Accordingly, as his award, the
 Arbitrator determined that the grievant was entitled to 3 1/4 hours of
 overtime at the appropriate rate of pay.
    In its exception the Agency contends that the award is deficient as
 contrary to 5 U.S.C. 5542(b)(2) and implementing regulations.  The
 Authority agrees.
    The Authority concludes that the award is deficient as contrary to
 law.  Specifically, the award is deficient by finding that the
 grievant's travel time constituted compensable hours of employment under
 5 U.S.C. 5542(b)(2)(B)(ii) and (iv) and by directing that the grievant
 be compensated accordingly.  As recognized by the Arbitrator, for travel
 time to be compensable under section 5542(b)(2)(B)(ii), the travel must
 be incident to travel that involves the performance of work while
 traveling.  The Office of Personnel Management (OPM) pursuant to its
 responsibility under 5 U.S.C. 5548(a) has issued regulations and
 guidance governing the administration of overtime.  In FPM Supplement
 990-2, book 550, subchapter S1, OPM has advised that this situation
 generally involves a "deadhead" trip, that is,