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

 19 FLRA No. 44
 
 U.S. IMMIGRATION AND
 NATURALIZATION SERVICE
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2580
 Union
 
                                            Case No. O-AR-815
 
                                 DECISION
 
    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, either traveling to a
 destination to board a means of transportation upon which the employee
 will be performing work while traveling which work can only be performed
 while traveling or traveling back to the employee's official duty
 station after having performed work while traveling.  Moreover, it has
 been consistently recognized that in most instances of travel, a
 government employee will necessarily transport supplies or equipment,
 and it has been consistently held that the transportation of supplies or
 equipment incident to the purpose of travel does not change the
 character of that travel.  E.g., Decision of the Comptroller General,
 B-178458, June 22, 1973;  accord 61 Comp.Gen. 626 (1982).  In this
 respect, as noted, the Arbitrator expressly identified the character of
 the travel as "prim(arily) . . . to perform work at the temporary
 station." Accordingly, under the statutory and regulatory provisions,
 the award finding the grievant's travel time compensable under section
 5542(b)(2)(B)(ii) is deficient.
 
    As also recognized by the Arbitrator, for travel time to be
 compensable under section 5542(b)(2)(B)(iv), the travel must result from
 an event which could not be scheduled or controlled administratively.
 However, as expressly determined by the Arbitrator, the central office
 of the Agency both scheduled and administratively controlled the
 assignment.  Thus, for the purposes of section 5542(b)(2)(B)(iv), the
 grievant's travel did not result from an event which could not be
 scheduled or controlled administratively.  See Barth v. U.S., 568 F.2d
 1329, 1331-33 (Ct. Cl. 1978);  United States Department of Labor and
 National Council of Field Labor Locals, American Federation of
 Government Employees, 10 FLRA 491 (1982);  see also U.S. Department of
 Justice, Federal Correctional Institution, Danbury, Connecticut and
 American Federation of Government Employees, Council of Prison Locals,
 Local 1661, 16 FLRA No. 112 (1984);  Air Force Logistics Command,
 Wright-Patterson Air Force Base and American Federation of Government
 Employees, Local 1138, 15 FLRA No. 95 (1985).  Consequently, the award
 finding such travel compensable on this basis is deficient.
 
    In view of the above, the Arbitrator's award of 3 1/4 hours of
 overtime compensation is deficient as contrary to 5 U.S.C. 5542(b)(2),
 and the award is accordingly set aside.  Issued, Washington, D.C., July
 26, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 5542(b)(2) alone governs this case because it is not
 contested that the grievant is an employee exempt from coverage under
 the Fair Labor Standards Act.