21:0189(29)AR - National Park Service, Capitol Region, Interior and Police Association of the District of Columbia -- 1986 FLRAdec AR



[ v21 p189 ]
21:0189(29)AR
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 quart