34:0750(130)AR - - Naval Public Works Center, San Diego and NAGE Local R12-35 - - 1990 FLRAdec AR - - v34 p750



[ v34 p750 ]
34:0750(130)AR
The decision of the Authority follows:


34 FLRA No. 130

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NAVAL PUBLIC WORKS CENTER

SAN DIEGO

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R12-35

0-AR-1562

DECISION

February 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Robert M. Leventhal. The Arbitrator determined that after three grievants hired at the Naval Public Works Center, San Diego (the Agency or PWC) were assigned to a Department of the Navy Survival, Escape, Resist and Evade (SERE) Camp, the SERE Camp became their permanent duty station. The Arbitrator remanded the grievants' requests for per diem and mileage reimbursements "back to the parties for the Grievants to submit claims for relocation [expenses] . . . ." Award at 16.

The National Association of Government Employees, Local R12-35 (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. The Agency did not file an opposition to the exception.

We conclude that the Union has not established that the Arbitrator's award is contrary to law, regulation or is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. Accordingly, we deny the Union's exception.

II. Background and Arbitrator's Award

In December 1986, three grievants filed grievances requesting per diem and mileage reimbursement for periods when they did not receive such reimbursement while assigned to the SERE Camp. The grievances were submitted to arbitration and the parties stipulated that the issue to be resolved was: "What was the permanent duty station of the Grievants?" Award at 1.

The Arbitrator noted that the PWC provided facilities and vehicle maintenance for Department of the Navy facilities in the San Diego area, and facilities and vehicle maintenance for the SERE Camp which is located approximately 60-70 miles from the PWC. The Arbitrator also found that the PWC does not maintain any permanent facility at the SERE Camp. Employees assigned to perform facility and vehicle maintenance at the SERE Camp worked under the supervision of individuals assigned to the PWC.

The parties stipulated that the grievants were required to report to the SERE Camp at the start of a shift and remain at the SERE Camp until the end of a shift. The Arbitrator noted that while there were periods when one or more of the grievants secured transportation to and from the SERE Camp by government vehicle, the grievants usually commuted from their homes by privately owned vehicles. The Arbitrator determined that, in order to report to the SERE Camp as directed, a daily commute in excess of 100 miles was necessary, which resulted in the grievants spending substantial travel time both before and after the shift and incurring the cost of operating their own vehicles. In addition, the Arbitrator found that no official actions were taken to change the grievants' places of assignment, positions, titles or grades when the grievants were directed to report to the SERE Camp.

The Arbitrator found that the parties' positions were based on their reading of the Joint Travel Regulations (JTRs), certain PWC regulations issued pursuant to the JTRs and Comptroller General rulings interpreting the JTRs. Consequently, the Arbitrator concluded that he was "being asked to construe the JTR in light of the Comptroller General rulings based on the facts of this dispute." Award at 9-10.

The Arbitrator found that based on applicable PWC regulations, the grievants could have been assigned anywhere within a 35-mile radius of PWC without question of reimbursement for temporary duty (TDY) or relocation expenses. The Arbitrator determined that according to the JTRs, employees are entitled to compensation for TDY assignments which require travel beyond specified distances. The Arbitrator noted further that employees should not be granted or denied TDY payments due to administrative error or oversight.

The Arbitrator found that all three grievants acknowledged that they knew, at some point after they had reported to the SERE Camp for an extended period, that the SERE Camp was their place of assignment. The Arbitrator noted further that, while the grievants would from time to time go to the PWC for parts or administrative support, the grievants were expected to spend the greater part of their time at the SERE Camp.

The Arbitrator also noted that both parties acknowledged that the JTRs are subject to interpretations of the Comptroller General. The Arbitrator found that, according to decisions of the Comptroller General, the determination of an employee's official or permanent duty station is based on fact and not merely on an administrative designation. Thus, based on the Comptroller General decisions, the Arbitrator found that "an assignment to a distant locale, where the employee expects to and spends the greatest part of his time, is a prima faci[e] demonstration as to the permanent or official duty station." Award at 13. Therefore, the Arbitrator concluded that because the initial temporary assignment of the grievants to SERE Camp became a permanent assignment at some point in time, the SERE Camp became the grievants' official duty station. Award at 13.

The Arbitrator concluded that the grievants' temporary assignments became permanent on the date that PWC stopped making TDY payments. The Arbitrator also noted that because the grievants' assignments to SERE Camp became permanent, they might be entitled to reimbursement of relocation expenses rather than TDY expenses. The Arbitrator suggested that this issue be submitted to the Comptroller General, or other appropriate authority, for a determination as to the grievants' entitlement under the JTRs. Award at 15.

Consequently, the Arbitrator did not grant the grievants' requests for per diem and mileage reimbursement for the periods of time that the grievants had not received such per diem and mileage reimbursement while assigned to the SERE Camp. He remanded those requests to the grievants to submit claims for relocation expenses.

III. Exception

The Union claims that the Arbitrator erred in concluding that the grievants' assignment to work at the SERE Camp was a permanent assignment rather than a temporary duty assignment for which the grievants would be entitled to per diem and mileage reimbursement.

The Union notes that there is considerable support in Comptroller General decisions for the general assertion that a management designation of an employee's permanent duty station is not controlling if such designation is contradicted by the actual work assignment given to an employee. However, the Union argues that the Arbitrator should have distinguished the circumstances of this case from the Comptroller General decisions on which he based his award. According to the Union, those cases involved the transfer of employees from one facility to another facility of an activity. The Union asserts that this case is different, because the grievants were field representatives of PWC and their assignments to the SERE Camp were field assignments and not transfers to another facility. Exception at 10.

The Union also argues that the length of the grievants' assignment to the SERE Camp does not mean that the SERE Camp became their permanent duty station. Rather, according to the Union, the Comptroller General has allowed lengthy TDYs when the employer originally intended the assignment to be temporary. Exception at 11-12.

Finally, the Union argues that this case is distinguishable from the Comptroller General decisions relied on by the Agency because, even assuming that the SERE Camp was a station of PWC, it was not a station to which the grievants legally could be assigned. Rather, according to the Union, PWC Instruction 7200 1L defines the permanent duty station for employees at the PWC as the area within a radius of 35 miles from the Naval Station, San Diego. The Union claims that the Instruction specifically states that an employee is not entitled to mileage reimbursement for miles traveled between home and a regular place of work which is located within that defined area. Thus, according to the Union, because the SERE Camp is more than 35 miles away from PWC, the SERE Camp cannot be the grievants' permanent duty station.

IV. Analysis and Conclusion

We conclude that the Union has not established that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by the Federal courts in private sector labor relations cases.

The payment of employee travel expenses is governed by provisions of the Travel Expense Act, specifically, 5 U.S.C. §§ 5701-5702, 5704, and 5706-5707, and the Federal Travel Regulations (FTRs), 41 C.F.R. §§ 301-304. See National Council of Field Labor Locals, Local 2513, AFGE and U.S. Department of Labor, Employment Standards Administration, Region 2, 29 FLRA 451 (1987). The Comptroller General administers and interprets the Travel Expense Act and its implementing regulations. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 106 (1983); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6, 10 (1986), enforced sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988).

The characterization of the SERE Camp as a temporary duty location rather than as a permanent duty station is critical to the grievants' claims for mileage reimbursement. It is well established that employees must place themselves at their regular places of work and return to their homes at their own expense absent statutory or regulatory authority to the contrary. Therefore, a conclusion that the SERE Camp is the permanent duty station of the grievants means that the grievants are not entitled to mileage reimbursement. See, for example, National Treasury Employees Union and Family Support Administration, Department of Health and Human Services, 30 FLRA 677, 678 (1987) (Proposal 1). Further, the characterization of the SERE Camp as a permanent duty station is also critical to the grievants' claims for per diem because the FTRs provide that employees may not be paid per diem at their permanent duty assignments. 41 C.F.R. § 301-7.4(a).

Although the FTRs do not define a temporary duty assignment, the Comptroller General has held that the determination of whether an assignment to a particular location is temporary or permanent is a question of fact to be determined from the orders directing the assignment, the duration of the assignment, and the nature of the duties performed. See 68 Comp. Gen. 454, 455 (1989) and cases cited in that decision. Thus, the Comptroller General has stated that the character of an assignment must be determined not only from its duration but also from the nature of the duties assigned. Id. at 455. See also, Federal Personnel Manual Supplement 990-2, Book 591, Subchapter S3-5c which states that "[a]n employee's permanent duty station generally is considered to be the place at which the employee ordinarily is required to spend the greater part of his working time."

The Union does not contest the Comptroller General's holdings that the determination of whether an assignment to a particular location is temporary or permanent is based on the nature and duration of the assignment in question. The Union contests only the Arbitrator's finding that the assignments of the grievants to the SERE Camp became permanent. In the Union's view, the grievants should be treated like field representatives of PWC and their assignments to the SERE Camp should be considered to be field assignments, not permanent transfers to another duty station. However, in deciding the issue before him, consistent with applicable Agency travel regulations and Comptroller General decisions, the Arbitrator evaluated the facts surrounding the grievants' assignments to the SERE Camp. Based on those facts, he concluded that, although the grievants' assignments to the SERE Camp were intended originally to be temporary, they became permanent. Therefore, the Arbitrator determined that the grievants were not entitled to per diem and mileage reimbursement after the assignments became permanent and he remanded the case to the parties for the grievants to submit claims for relocation expenses.

In our view, the Union's exception constitutes nothing more than disagreement with the Arbitrator's reasoning, findings of fact and conclusions based on the evidence before him that the SERE Camp became the grievants' permanent duty station after a period of