32:0930(132)AR - - Labor, Mine Safety and Health Administration and AFGE, National Council of Field Labor Locals - - 1988 FLRAdec AR - - v32 p930
[ v32 p930 ]
The decision of the Authority follows:
32 FLRA No. 132
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF LABOR, MINE
SAFETY AND HEALTH ADMINISTRATION
NATIONAL COUNCIL OF FIELD LABOR
LOCALS, AMERICAN FEDERATION OF
Case No. 0-AR-1502
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Michael E. Zobrak. Three employees filed grievances protesting the Agency's refusal to grant them overtime compensation. The grievances were consolidated and submitted to arbitration. The Arbitrator found that the Agency had not violated law, regulation, or the parties' collective bargaining agreement when it denied the grievants overtime compensation. Accordingly, the Arbitrator denied the grievances, including the grievance of Grievant Gerbec, who is not exempt from the Fair Labor Standards Act (FLSA).
The Union filed an exception under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations to the award denying the grievance of Grievant Gerbec. The Agency filed an opposition.
We conclude that the Union has failed to establish that the award is contrary to law or regulation. Accordingly, we will deny the exception.
Grievant Gerbec's grievance related to overtime compensation which was disallowed for certain travel time during the period the grievant and another employee conducted a respirable dust study at a mine. Under Agency regulations, the mine became the grievant's temporary duty station during the time of the dust study. During the period of the study, the grievant and the other employee were lodged at a motel which was approximately 45 minutes' travel time from the mine. The employees were provided with a Government vehicle in which to travel.
On the mornings of August 1, 2, 5, and 6, 1985, the grievant drove the vehicle from the motel to the mine. The other employee drove the vehicle from the mine to the motel each afternoon, during which time the grievant was a passenger and performed no work. Each morning, the employees transported sampling equipment to the mine in their vehicle. Each afternoon, the equipment was loaded into their vehicle and returned to the motel. The equipment was then unloaded and cleaned at the motel and made ready for the next day's sampling.
The grievant was compensated for all time spent at the mine. The grievant was also compensated for all time spent loading, unloading, and cleaning the sampling equipment. The grievant was not compensated for the time spent as a passenger traveling in the vehicle from the mine to the motel in the afternoon. The Agency denied compensation for this travel time as a passenger, classifying the travel as being similar to commuting between the official duty station and home.
The grievant filed a grievance protesting the Agency's refusal to compensate him for the afternoon travel time between the mine and the motel. The grievance was submitted to arbitration on the issue of whether the Agency violated law, regulation, or the parties' collective bargaining agreement when it denied the grievant overtime compensation for the afternoon travel time as a passenger.
III. Arbitrator's Award
The Arbitrator reviewed the Fair Labor Standards Act and implementing regulations and concluded that there was no provision authorizing compensation to the grievant for travel time as a passenger in a vehicle between his temporary duty station and his temporary lodging.
The Arbitrator rejected the claim that the grievant's travel time was compensable under 29 C.F.R. § 785.38, which implements the FLSA with respect to travel time. Section 785.38 provides that an employee who is required to report to a meeting place to receive instructions or to pick up tools must be compensated for the travel time from the designated meeting place to the work place. The Arbitrator found that under Federal Personnel Manual (FPM) Letter 551-11, the motel was the grievant's temporary lodging. Consequently, the Arbitrator found that the grievant was not required to report from the motel to a designated location to pick up tools or to receive instructions.
The Arbitrator determined that the Agency had not violated law, regulation, or the parties' collective bargaining agreement when it denied the grievant overtime compensation. Therefore, the Arbitrator denied the grievance.
IV. Positions of the Parties
The Union contends that the award is contrary to the Fair Labor Standards Act and implementing regulations. The Union maintains that contrary to the Arbitrator's determination, the grievant's travel time was compensable under 29 C.F.R. § 785.38.
The Agency contends that the Union's reliance on 29 C.F.R. § 785.38 is misplaced. The Agency maintains that this provision concerns travel between job sites or between designated meeting places and job sites. The Agency asserts that the Arbitrator correctly determined that the grievant was not involved in such travel. Instead, the Agency contends that the grievant's travel was between his work site and his lodging. The Agency argues, therefore, that the travel is considered to be home-to-work and is not compensable.
V. Analysis and Conclusions
We conclude that the Union fails to establish that the award is contrary to the FLSA and implementing regulations.
FPM Letter 551-11 states that an employee shall not be compensated for normal home-to-work travel. The FPM Letter directs that the time spent by an employee commuting between temporary lodging, such as a motel, and the temporary duty station shall be considered home-to-work travel. The FPM Letter further directs that home-to-work travel time shall not be considered working time under the FLSA unless the travel meets one of the specified conditions where home-to-work travel is compensable.
The only condition where travel time as a passenger is compensable is the situation addressed by 29 C.F.R. § 785.38: the employee reports to a designated meeting place to pick up tools or receive instructions and is transported as a passenger by Government vehicle to a job site. See FPM Letter 551-10, Table 1. When this condition is met, the meeting at the designated location commences the employee's workday and all subsequent travel is compensable. However, the travel between the designated meeting place and lodging is normal home-to-work travel and is not compensable. Id.
The Arbitrator reviewed the FLSA and implementing regulations and applied them to the grievant's disputed travel time. He concluded that there was no provision authorizing compensation to the grievant for travel time as a passenger in a vehicle between his temporary duty station and his temporary lodging. The Arbitrator found that the grievant was not required to report to a designated location to receive instructions or pick up tools so as to make his travel time as a passenger compensable.
The Union fails to establish that the denial of compensation in these circumstances is contrary to the FLSA or implementing regulations. Rather, the Union merely disagrees w