37:0476(34)AR - - Army, Army Missile Command, Redstone Arsenal, AL and AFGE Local 1858 - - 1990 FLRAdec AR - - v37 p476
[ v37 p476 ]
The decision of the Authority follows:
37 FLRA No. 34
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
ARMY MISSILE COMMAND
REDSTONE ARSENAL, ALABAMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
September 24, 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 Malcolm J. Hall. The Activity denied the grievant's requests to be reimbursed at a higher per diem rate than he had been accorded for meals in non-Government eating facilities while he was on temporary duty in Saudi Arabia. The Arbitrator, based on the doctrine of equitable estoppel, directed the Activity to reimburse the grievant at the requested higher per diem rate.
The U.S. Department of the Army (the Agency) filed an exception to the award on behalf of the Activity 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 Union filed an opposition to the exception.
For the following reasons, we conclude that the Arbitrator's award is deficient.
II. Background and Arbitrator's Award
The grievant, whose permanent duty station is in the United States, volunteered to work on temporary duty in Saudi Arabia. It was his understanding, based on promises by a management official, that, among other benefits, he could eat in non-Government facilities in Saudi Arabia and, therefore, he would be reimbursed at a higher per diem rate than authorized for eating meals in Government-furnished eating facilities in Saudi Arabia. Arbitrator's Award at 11. He was told that his travel orders would reflect these promises. On February 25, 1986, the grievant's travel orders were issued. They stated that the use of Government or contractor eating facilities would be impractical. Shortly thereafter, he departed for Saudi Arabia and upon arriving there began eating in non-Government eating facilities.
On March 12, 1986, while in Saudi Arabia, the grievant's travel orders were amended by management in his permanent duty station to require him to eat in Government eating facilities. The grievant was not officially notified of the change in his travel orders, however, and continued to eat in non-Government eating facilities. The grievant was in Saudi Arabia for a total of 43 days.
When he returned to his permanent duty station in the U.S., the grievant was officially notified that his travel orders had been amended. The grievant sought reimbursement at the higher per diem rate for money spent for meals in non-Government eating facilities in Saudi Arabia. The Activity denied his request. A grievance filed over the matter was not resolved and was submitted to arbitration.
The Arbitrator ruled that the Activity should be estopped from denying the grievant's request to be reimbursed at the higher per diem rate for meals because the grievant had relied on his original travel orders, which indicated that the grievant could eat in non-Government eating facilities in Saudi Arabia. Consequently, the Arbitrator directed the Activity to pay the grievant at the higher per diem rate.
III. Positions of the Parties
In its exceptions, the Agency contends that the award is deficient because it is contrary to the Department of Defense Joint Travel Regulations (JTR). The Agency argues that the grievant is not entitled to the higher per diem rate because he did not submit from the commander at the temporary duty station in Saudi Arabia certificates of nonavailability of meals that would entitle the grievant to such per diem rates, as required by the JTR. In support of its position, the Agency cites the Comptroller General's decision in 66 Comp. Gen. 631 (1987).
The Union contends that the JTR is not relevant to the dispute in this case. Rather, the Union argues that the relevant issue is that the grievant was not officially notified of his amended travel orders until after he returned to his permanent duty station.
IV. Analysis and Conclusions
Based on the doctrine of equitable estoppel, the Arbitrator in his award sustained the grievant's money claim against the Activity. After the Arbitrator's award issued in this case, the Supreme Court issued its decision in OPM v. Richmond, 110 S. Ct. 2465 (1990) (Richmond), in which it addressed the matter of whether the doctrine of equitable estoppel could serve as a basis of a monetary claim against the Federal Government.
In Richmond, a Federal retiree was given erroneous information by a Government employee concerning the receipt of a disability annuity. After the retiree relied on the erroneous information, which caused him to earn more than permitted by relevant statute, the Office of Personnel Management (OPM) denied him six months of benefits. On appeal to the Federal Circuit, the court held that the misinformation estopped OPM from denying benefits. The Supreme Court reversed, holding that the Constitution limits payments of money from the Federal Treasury to those payments authorized by statute, and that erroneous advice by a Government employee to a Federal retiree cannot estop the Government from denying benefits not otherwise permitted by law. In view of the Supreme Court's decision in Richmond, we conclude that the award is deficient.
Initially, we find that, under the JTR, the grievant is not entitled to be reimbursed at a higher per diem rate for money spent for meals in non-Government eating facilities in Saudi Arabia. The JTR, at footnote 13, Appendix A, Volume 2, sets forth the circumstances under which civilian employees of the Army may be reimbursed for quarters and lodging while on temporary duty in Saudi Arabia. Footnote 13 also provides a table for reduced amounts of per diem when Government quarters and mess are available.(1) Footnote 13 provides in pertinent part that:
On any day when quarters are furnished by the U.S. or Saudi Arabian Government or Department of Defense (DOD) sponsored contractors, and when at least two meals are available . . . a travel per diem allowance as specified for each location in the following table . . . is payable to personnel on temporary duty.
Following the table of daily rates, footnote 13 continues:
For the purpose of this footnote, a meal will not be considered available when any one of the following conditions exists: (a) no meal is available for a particular mealtime; (b) the use of an available meal would adversely affect the performance of the employee's mission; (c) the use of a meal facility is impractical. The commanding officer (or his designated representative) at the temporary duty point will issue a statement for each mealtime when one of the conditions exists.
Therefore, the determination of meal availability for per diem purposes is one to be made by the commander at the temporary duty station and not by the person issuing travel orders at the employee's permanent duty station. 66 Comp. Gen. 631 (1987), aff'd on reconsideration, Comp. Gen. No. B-225985.2 (1989) (unpublished) (66 Comp. Gen. 631).(2)
In this case, it is undisputed that the grievant did not use the available eating facilities in Saudi Arabia provided by the Government. Furthermore, the record reveals that the grievant did not submit from the commander at his temporary duty station certificates of nonavailability of meals that would have entitled the grievant to the higher per diem rate, as required by the regulation. The fact that the original travel orders issued at the grievant's permanent duty station permitted the grievant to seek non-Government eating facilities does not provide a basis for concluding that Government eating facilities were impractical or not available for per diem purposes. As noted, the determination as to the availability of meals for per diem purposes is the responsibility of the commander at the temporary duty station. Therefore, under the requirements of the JTR, the grievant is not entitled to the higher per diem rate. Additionally, it is not apparent from the evidence that there is any other statutory basis for such payment.
Because there is no basis in the record of this case on which to conclude that the grievant was at any time entitled to the higher per diem rate under the requirements of the JTR, or that, in the circumstances of this case, the grievant has any other statutory or regulatory entitlement to the higher rate, we conclude, consistent with Richmond, that the Arbitrator improperly determined that the equitable estoppel doctrine could serve as the basis for directing the Activity to grant the grievant's monetary claim. Accordingly, we will set aside the award.
The Arbitrator's award is set aside.
(If blank, the decision does not have footnotes.)
(1) These provisions implement the requirement of the Federal Travel Regulations that agencies authorize only such per diem allowances as are justified by the circumstances, giving consideration to factors that reduce costs such as locations where meals may be obtained at no cost or reduced cost. FTR, para. 1-7.3a (Nov. 1, 1981), incorp. by ref., 41 C.F.R. § 101-7.003 (1986).
(2) In 66 Comp. Gen. 631 (1987), the Comptroller General determined that the Agency should recoup from employees of the Activity amounts paid in excess of the reduced per diem rates for meals authorized by the JTR for temporary duty in Saudi Arabia because the record established that no statement of nonavailability of meals from the commanding officers at the temporary duty point had bee