21:0189(29)AR - National Park Service, Capitol Region, Interior and Police Association of the District of Columbia -- 1986 FLRAdec AR
[ v21 p189 ]
The decision of the Authority follows:
21 FLRA No. 29 NATIONAL PARK SERVICE, NATIONAL CAPITOL REGION, U.S. DEPARTMENT Of INTERIOR Agency and POLICE ASSOCIATION OF THE DISTRICT OF COLUMBIA Union Case No. 0-AR-755 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator Charles Feigenbaum filed be 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 grievants in this case, two Park Police officers, volunteered for a temporary detail to New York City. In its request for volunteers, the Agency had informed interested officers that Government-furnished lodging would be provided and that two officers would be assigned to each room. The grievants indicated that they would stay in lodging provided by the Agency. They also received travel authorizations which authorized payment of expenses not to exceed $75 per day. The grievants testified that when they arrived at the designated hotel in New York they were informed that no rooms had been reserved for the Park Police. The grievants then made their own separate arrangement; for single occupancy rooms at $39 per day for each room because the single room rate was within the limit set by their travel authorizations. However, the double occupancy rate would have been about half the single occupancy rate for each of the grievants. When supervisory personnel became aware of the grievants' arrangements, they were informed that while they might be technically in compliance with their travel authorizations, they could not continue to stay in single rooms but had to double up. The grievants refused, their details were terminated and they filed the grievances which were eventually submitted to the Arbitrator. The grievants were, however, also reimbursed for their hotel expenses at the single room rate. The Arbitrator framed the issue in the grievances as whether the Agency violated law, regulation, or the parties' collective bargaining agreement by requiring the grievants to share a room and by terminating their details when they refused to do so. He determined that there did not appear to be any authority which addressed the question of the number of employees that can be assigned to a hotel room. The Arbitrator found, however, that 5 U.S.C. 5911(e), which prohibits requiring an employee to stay in rental quarters unless certain conditions are met, /1/ also precludes requiring employees to hotel rooms unless the same conditions are met. The Arbitrator found that it was reasonable to conclude that hotel rooms contracted for or reserved by an agency are considered to be Government-furnished quarters and therefore that the provision applies to such rooms well. He further concluded that the intent of that provision was to afford employees in a temporary duty travel states some degree of freedom to choose their own accommodations and to protect them against being forced into inadequate quarters. The Arbitrator added that the benefits of 5911(e) were subject to a requirement that an employee must exercise the same care in incurring expenses that a prudent person would exercise if traveling on personal business and subject also to the conditions set forth in 5 U.S.C. 5911(e). The Arbitrator found that the grievants had not acted imprudently and that the conditions in 5 U.S.C. 5911(e), which might have permitted the employer to require the grievants to share room in certain circumstances, had not been met in this case. The Arbitrator therefore determined that the Agency acted improperly when it attempted to require the grievants to share a room and that their refusal to double up was not a legitimate reason for terminating their details. He held that the Agency could not require employees to double up in hotel rooms while in travel status unless the requirements of 5 U.S.C. 5911(e) are met. He also awarded one grievant backpay for 41 hours of overtime he estimated the grievant would have worked if his detail had not been terminated. III. FIRST EXCEPTION A. Contention In its first exception, the Agency alleges that the award is contrary to law because the Arbitrator misapplied 5 U.S.C. 5911(e). The Agency argues that the Arbitrator erred by equating hotel rooms reserved by the Agency with "quarters" as used in 5 U.S.C. 5911(e) and by failing to recognize that the grievants were not required to stay at the hotel but had the option to stay elsewhere or to stay in single rooms in the hotel and pay the extra cost. The Agency further argues that requiring employees to share rooms is not the same as requiring them to stay at a specific place and that there was no basis for the Arbitrator to determine that the lodgings were inadequate when employees were required to double up as there was no testimony or evidence in the record to support such a determination. B. Analysis and Conclusion The Authority finds that the Agency has not established that the Arbitrator erred by applying 5 U.S.C. 5911(e) or that his award is contrary to that statutory provision. Rather, the Agency is merely disagreeing with the Arbitrator's reasoning and conclusions. In the absence of a showing that the award is contrary to law, this exception provides no basis for finding the award deficient. Southeastern Program Service Center, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 2205, 7 FLRA 418 (1981). The Authority notes that the Federal Travel Regulations (FTRs), which govern official travel, require that an employee traveling on official business is expected to exercise the same care in incurring expenses that a prudent person would exercise if traveling on personal business. FTR Chap. 1-1.3a. The FTRs also provide that heads of agencies are responsible for ensuring that expenses incurred by travelers are allowable subsistence expenses that were necessarily incurred in connection with the specific travel assignment. FTR Chap. 1-8.3b. The grievants were authorized a maximum actual expense subsistence of $75 per day. Their expense claims did not exceed that amount with single occupancy rooms. The Agency was responsible under the FTRs for determining whether the grievants' expenses were allowable and necessary and whether the grievants acted prudently in incurring those expenses. The Agency's determination is reflected in the fact that the grievants were reimbursed for their single room expenses. Such action further supports the conclusion that the Arbitrator's determination is not inconsistent with authorities governing employee travel on official business. IV. SECOND, THIRD AND FOURTH EXCEPTIONS A. Contentions In its second, third and fourth exceptions, the Agency contends respectively: that the Arbitrator's award fails to draw its essence from the parties' agreement because the Arbitrator did not expressly find that management violated the parties' agreement; that the Arbitrator exceeded his authority by deciding an issue that was not raised in the grievance or by the parties and that the award is based on a nonfact because even assuming that 5 U.S.C. 5911(e) applies, the Arbitrator erroneously concluded that portions of that provision, which could have warranted requiring the employees to share a room, had not been met. B. Analysis and Conclusion As already noted it is well-established that exceptions which constitute nothing more than disagreement with an arbitrator's reasoning and conclusions in resolving a dispute do not provide a basis for finding an award deficient under the Statute. E.g., Defense Logistics Agency, Defense Depot Memphis, Memphis, Tennessee and American Federation of Government Employees, Local 2501 13 FLRA 5 (1983); U.S. Army Corps of Engineers, New Orleans District and National Federation of Federal Employees, Local No. 1124, 13 FLRA 70, 71 (1983). The Authority finds that the Agency's contentions in support of its second, third and fourth exceptions constitute nothing more than disagreement with the Arbitrator's reasoning and conclusions in resolving the dispute before him. Consequently, the Authority concludes that these exceptions provide no basis for finding the Arbitrator's award deficient. V. FIFTH EXCEPTION A. Contention In its fifth exception, the Agency principally alleges the award of 41 hours retroactive overtime pay to one of the grievants is contrary to the Back Pay Act, 5 U.S.C. 5596. B. Analysis and Conclusion The Authority has held that the Back Pay Act requires that for an award of backpay to be authorized, the arbitrator must find that an agency personnel action was unjustified or unwarranted, that the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials, and that but for such action, the grievant otherwise would not have suffered such withdrawal or reduction. American Federation of Government Employees, Local 3553, AFL-CIO and Veterans Administration Medical Center, New Orleans, Louisiana, 18 FLRA No. 65 (1985). The Arbitrator determined that the Agency acted improperly when it attempted to require the grievants to share a room and terminated their detail when they refused. However, the Arbitrator also found that "overtime was not certain" The Arbitrator did not expressly find both that the unjustified termination of the detail directly resulted in the loss of overtime pay and that but for this unjustified action the grievant would have received such pay. The Authority, therefore, finds that there is an insufficient legal basis for an award of backpay in this case and that the Arbitrator's award of overtime pay is contrary to the Back Pay Act. VI. DECISION Based on the foregoing, the Agency's exceptions numbered one through four are denied, and the award is modified by striking the award of backpay. Issued, Washington, D.C., March 27, 1986 (s)--- Jerry L. Calhoun, Chairman (s)--- Henry B. Frazier, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 5 U.S.C. 5911(e) provides: The head of an agency may not require an employee or member of a uniformed service to occupy quarters on a rental basis, unless the agency head determines that necessary service cannot be rendered, or that property of the Government cannot adequately be protected, otherwise.