41:1295(101)AR - - Treasury, IRS, Brooklyn District and NTEU Chapter 53 - - 1991 FLRAdec AR - - v41 p1295



[ v41 p1295 ]
41:1295(101)AR
The decision of the Authority follows:


41 FLRA No. 101

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

BROOKLYN DISTRICT

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 53

(Union)

0-AR-1988

DECISION

August 23, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Peter R. Blum filed by the Union 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 filed an opposition to the Union's exception.

The Arbitrator found that the Agency had not violated any law, regulation, or provision of the parties' collective bargaining agreement when it denied overtime compensation to certain employees for travel to and from training at a temporary post of duty.

We conclude that the Union fails to establish that the award is based on a nonfact. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

During 1986-1988, employees who were covered by the Fair Labor Standards Act (FLSA) and who were stationed at Mineola and Smithtown, New York, were assigned to attend training in Manhattan. Employees from the Smithtown duty station filed claims for overtime compensation for the time spent traveling to and from Manhattan for the training. The claims were denied by management based on Federal Personnel Manual Letters 551-10 and 551-11. The employees from the Mineola duty station also filed claims for overtime compensation for the time spent traveling to and from Manhattan for the training. These claims were denied by management based on the FLSA and 5 U.S.C. § 5542. The denial was subsequently amended to add that compensation was barred because Manhattan is within the commuting area for Mineola.

According to the Arbitrator, the Agency has established as a commuting area a radius of 40 miles from an employee's office and residence. In order for a temporary place of duty to be outside the commuting area, the place of duty must first be outside the boundaries of the employee's official duty station. In addition, the temporary place of duty must be more than 40 miles from the employee's office and more than 40 miles from the employee's residence. Manhattan is apparently outside the boundaries of the official duty station for both Smithtown and Mineola. However, only the Smithtown office is more than 40 miles from the Agency's Manhattan training facility.

The Union filed separate grievances on behalf of the employees assigned to Smithtown and to Mineola. During the grievance process, the Union requested that the Agency seek a formal opinion from the Office of Personnel Management (OPM) on the question of entitlement to overtime compensation. The OPM concluded that overtime compensation was not authorized. With respect to the employees stationed in Mineola, the OPM specifically advised that "[n]onexempt employees working in Mineola are not entitled to credit their travel time as hours of work since it consists solely of travel within the official duty station and outside of normal working hours." Agency's Opposition at 14.

The Union disagreed with the OPM's opinion. The grievances were not resolved, and they were consolidated and submitted to arbitration.

The parties stipulated the issue to be whether the Agency violated law, rules, regulations, and/or the parties' collective bargaining agreement by its scheduling of training classes or by its denial of overtime compensation for time spent traveling to and from training classes, and, if so, what should the remedy be.

The Arbitrator determined that it was impractical to schedule the training classes so that travel could take place during regularly scheduled work hours. Accordingly, the Arbitrator ruled that the Agency had not violated any law, regulation, or provision of the parties' agreement by its scheduling of training classes.

Because the grievants stationed in Smithtown were traveling to a temporary duty location outside their commuting area, the Arbitrator ruled that, under 5 C.F.R. § 551.442, they were entitled to be compensated at overtime rates for the time spent traveling to and from the Manhattan training facility. Accordingly, the Arbitrator ordered the Agency to grant all affected employees from Smithtown overtime pay in accordance with the FLSA and applicable regulations.

However, the Arbitrator denied the claims for overtime compensation for employees from Mineola. The Arbitrator noted that entitlement to overtime compensation under the parties' agreement is contingent on an assignment to a temporary post of duty that is outside an employee's commuting area and that the distance from Mineola to Manhattan is within the 40-mile radius established by the Agency as its commuting area. The Arbitrator acknowledged the Union's argument that there is an exception to the mileage radius rule under Agency regulations and the parties' agreement. He quoted the parties' agreement as providing an exception to the commuting area rule when "[u]nusual circumstances" exist. Award at 13 (quoting Article 29, Section 3F of the parties' agreement).(1) However, he rejected the Union's contention that the Agency should have applied the exception to the Mineola employees on its own initiative.

The Arbitrator determined that under the parties' agreement, "the [travel] voucher submitted by the employee must contain an explanation of the circumstances to justify an exception to the forty (40) mile radius rule and a statement as to the directing official's determination."  Id. at 14. He found that there was no evidence that vouchers submitted by the Mineola employees contained the required explanation so as to require a determination by the head of the office on whether to grant an exception to the 40-mile radius standard of the commuting area rule. In the Arbitrator's view, "[i]f an employee wished to take advantage of the exception to the forty (40) mile radius rule, it was up to the employee to start the ball rolling as provided in Section 3.F., by calling attention on the filed voucher to the unusual circumstances." Id. at 14-15. The Arbitrator found that "[i]t is not a duty of the Agency to provide the information concerning any claims [sic] unusual circumstances, especially when any claimed unusual circumstances are to be considered an exception to the Agency instituted forty (40) mile radius rule." Id. at 15. Accordingly, the Arbitrator ruled that the Agency had not violated applicable law or regulations or the parties' collective bargaining agreement by denying the overtime compensation claims of the Mineola employees.

III. Positions of the Parties

A. The Union

The Union filed an exception to the portion of the Arbitrator's award denying overtime compensation to the Mineola employees. The Union contends that this portion of the award is based on a nonfact.

The Union notes that the Arbitrator found that the entitlement of the Mineola employees to overtime compensation derived from an exception to the 40-mile radius rule. The exception is contained in both Agency regulation and the parties' collective bargaining agreement. The Union further notes that the Arbitrator interpreted this provision to require employees to request an exception to the 40-mile radius rule on their travel vouchers in order to take advantage of the exception. The Union claims that this interpretation is contrary to facts in the record which establish that: (1) managers directed employees on how to complete travel vouchers; (2) employees who did request overtime compensation were denied such compensation; and (3) management has the responsibility to consider granting an exception to the 40-mile radius rule before assigning employees to travel. The Union maintains that had these facts been properly considered, the Arbitrator would have concluded that the Mineola employees were entitled to overtime.

The Union argues that by his construction of the agreement provision, the Arbitrator ignored the reality of management's control over the content of travel vouchers, which was clearly established in the record. The Union further argues that, in fact, some employees did request overtime compensation on their travel vouchers, but their requests were denied. The Union also asserts that the Arbitrator mistakenly assigned responsibility to employees to claim an exception to the 40-mile radius rule and that this determination misconstrues the facts regarding employee responsibility.

In addition, the Union claims that employees were entitled to an exception to the 40-mile radius rule as acknowledged by management in testimony and by its granting of an exception to the rule with respect to some employees. Consequently, the Union maintains that but for the Arbitrator's misconstruction of the facts, he would have ordered all similarly situated employees to be similarly compensated on the basis of management's consistent granting of an exception to the rule.

B. The Agency

The Agency maintains that the Arbitrator was correct in his determination that it is the employee's obligation to seek an exception. The Agency also maintains that this was not the central fact underlying the Arbitrator's decision unholding the denial of overtime compensation to the Mineola employees. The Agency asserts that the Arbitrator considered various factors in denying the Mineola employees overtime compensation. Thus, the Agency claims that the Arbitrator's consideration of the employee's obligation to seek an exception to the commuting area rule was only one of the factors and should not be deemed to be the central fact on which he based his decision.

The Agency argues that even if the Arbitrator's determination that employees must seek an exception is the central fact underlying the award, the award is not deficient because the Arbitrator's determination is not clearly erroneous. The Agency maintains that the Arbitrator's determination is based directly on the unambiguous language of an Agency regulation that is also set forth in the parties' agreement. The Agency contends that it is illogical for the Union to argue that the Agency must consider granting an exception whenever it assigns an employee to travel. The Agency also contends that there is no basis for the Union's assertion that the Agency should have granted an automatic exception to all the Mineola employees. The Agency argues that such an assertion ignores the specific language that limits the exception to unusual circumstances.

The Agency also maintains that there is no evidence that in determining whether to grant an exception, the Agency exercised its discretion in an arbitrary manner. The Agency argues that the fact that only one employee from the Mineola office was granted an exception is irrelevant without further information, which the Agency claims the Union did not introduce at the hearing, bearing on whether unusual circumstances existed so as to qualify each employee for an exception. Thus, the Agency asserts that there is no basis to conclude that the result would have been different if the Arbitrator had not ruled that employees were required to request an exception to the commuting area rule. The Agency notes that the decision to grant an exception would still have been within management's discretion and that the Arbitrator in no way indicated that the Mineola employees would have been granted overtime compensation had they properly submitted their requests. In the Agency's view, the Union's argument ignores the general principle of law as reflected by the OPM's opinion that employees are not to be compensated for normal home-to-work travel.(2)

IV. Analysis and Conclusions

We will find an award deficient under the Statute because it is based on a nonfact if the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 39 FLRA 430, 435 (1991) (SSA, Baltimore). We conclude that the Union fails to establish that the award in this case is based on a nonfact.

The Union contends that the Arbitrator relied on a nonfact in his "interpretation" and "construction" of the provision for an exception to the 40-mile radius rule set forth in Agency regulation and the parties' collective bargaining agreement to require employees to request the exception. Exception at 6, 8. In our view, the Arbitrator's interpretation and construction of the provision does not constitute a fact. In SSA, Baltimore, the arbitrator concluded that the grievant was under an obligation to contact the agency and that it was his responsibility to take steps to resolve the matter. 39 FLRA at 435. We found that the arbitrator's conclusion was not a fact, but, instead, reflected the arbitrator's reasoning and conclusion as to the appropriate steps that should have been taken by the grievant. Because the arbitrator's conclusion did not constitute a fact, we concluded that the award was not deficient because it was based on a nonfact. Id. at 435-36. In this case, we find that the Arbitrator's similar conclusion that the employees stationed in Mineola had an obligation and responsibility to request the exception to the 40-mile radius rule on their travel vouchers does not constitute a fact. Instead, the conclusion reflects the Arbitrator's interpretation and application of the exception provision set forth in Agency regulation and the agreement. Accordingly, the Union's exception provides no basis for finding the award deficient because it is based on a nonfact. See id.; see also U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 38 FLRA 1183 (1990) (arbitrator's conclusion does not constitute a fact).

Furthermore, we find that, in any event, the Union fails to establish that the Arbitrator's interpretation and construction of the exception provision is clearly erroneous. The Union's contention that the Arbitrator's interpretation and construction is clearly erroneous constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the provision. In addition, the Union's contention that employees who did request overtime compensation were denied such compensation constitutes nothing more than disagreement with the Arbitrator's finding of fact that there was "no evidence that vouchers submitted by Mineola employees contained the afore-mentioned required explanation of the circumstances so as to call for the directing official's determination." Award at 14. As such, these contentions provide no basis for finding that the award is based on a nonfact. See U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 39 FLRA 590, 605 (1991) (agency's nonfact argument disputing the arbitrator's interpretation of regulation rather than the arbitrator's factual findings provided no basis for finding that the award was based on a nonfact); American Federation of Government Employees, Local 916, AFL-CIO and Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma, 34 FLRA 587, 589-90 (1990) (agency's nonfact argument constituted nothing more than disagreement with the arbitrator's interpretation and application of the collective bargaining agreement, his findings of fact and his evaluation of the evidence and testimony and provided no basis for finding that the award was based on a nonfact).

Accordingly, we will deny the exception.

V. Decision

The Union's exception is denied.

APPENDIX

Article 29, Section 3F of the parties' agreement provides as follows:

Unusual circumstances may exist that would justify an exception to the criteria in E. above. For instance, duty which, by its nature, would place an unreasonable demand on an employee due to unusually long transit time or particularly late departure or would cause work time loss would create an exception. Examples would be when an employee has to perform duty until very late at night or is required to return for several days to a duty point of work or training. In both examples an exception can be made although the temporary duty point would be less than forty (40) miles. In such cases the head of the office may determine that the place of duty is outside the commuting area, providing it is outside the boundaries of the official station. The voucher must contain an explanation of the circumstances and a statement as to the directing official's determination.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 29, Section 3F of the parties' agreement is set forth in the appendix to this decision.

2. The Agency also contends that the Union's reference in its exception to a Union exhibit, which was not offered into evidence before the Arbitrator, and the Union's inclusion in its submission to the Authority of copies of various other Union exhibits, which were not submitted to the Arbitrator, are improper and that these documents s