46:0615(60)AR - - NAGE Local R14-52 and Army, Red River Army Depot, Texarkana, TX - - 1992 FLRAdec AR - - v46 p615
[ v46 p615 ]
The decision of the Authority follows:
46 FLRA No. 60
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
RED RIVER ARMY DEPOT
DECISION AND ORDER
November 23, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert E. Harding, Jr. 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 exceptions.
The Union filed a grievance on behalf of several employees who had been denied pay for the time they spent traveling to and from Saudi Arabia, where they had been sent to support troops during Operation Desert Storm and Operation Desert Shield. The Arbitrator denied the grievance.
For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The Agency sought employee volunteers to travel to Saudi Arabia to assist soldiers in establishing a supply and maintenance depot during Operation Desert Storm and Operation Desert Shield. The groups of volunteers were sent to Saudi Arabia at various times on temporary duty status to accomplish the support. The parties agreed that the employees were paid for hours of regular work and overtime under the provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., for time spent traveling during corresponding hours of work on nonwork days. Several employees contested the Agency's failure to pay them for all of their travel time. The parties agreed that the "grievant (1st vice president of the Union) would be reflective of the travel arrangements and payments received by each" employee who contested the Agency's failure to pay them for all of their travel time. Award at 3. The grievance was not resolved and was submitted to arbitration.
The Arbitrator stated the issues before him as follows:
1. Whether or not grievant, and those persons similarly situated, are entitled to overtime pay under Title 5 U.S.C. 5542(b)(2)(B) or 5 C.F.R. 550, rather than the compensation they received under the provisions of Title 29 U.S.C. 201 et seq., or 5 C.F.R. 551, the Fair Labor Standards Act, for the time spent in a travel status to and from Southwest Asia?
2. Whether or not grievant, and those persons similarly situated, were on standby duty or in an on-call status while awaiting transportation in Bahrain back to the United States or during travel, so as to warrant compensation under 5 C.F.R. 551.431?
Before the Arbitrator, the Union contended that the grievant and other similarly situated employees were entitled to overtime pay under 5 U.S.C. § 5542(b)(2)(B),(1) rather than under the FLSA, because the event that led to the temporary duty--Iraq's aggression in the Middle East--could not be scheduled or controlled administratively. The Union also contended that such compensation was warranted because the employees traveled to Southwest Asia under arduous conditions. Further, the Union asserted that the grievant and other similarly situated employees should be compensated for the time spent in Bahrain awaiting transportation to the United States and for other times spent on standby duty or in an on-call status under 5 C.F.R. § 551.431. The Union argued that nonpayment by the Agency constituted a violation of Article XXXII of the parties' agreement.
Before the Arbitrator, the Agency asserted that the employees were properly compensated under the FLSA, rather than under title 5 of the United States Code, because the travel resulted from an event that was administratively controlled by the U.S. Government. The Agency also asserted that the employees did not travel under arduous conditions.
The Arbitrator found that "the event that necessitated travel was the need for support and maintenance personnel to assist soldiers in establishing a supply and maintenance depot support operation in Saudia [sic] Arabia--not Saddam Hussein's aggression." Award at 8 (emphasis in original). According to the Arbitrator,
just about every detail regarding the establishment and operation of the supply and maintenance depot in Southwest Asia, including the times scheduled for volunteers' travel to and from the area[,] was scheduled and administratively controlled by the Army. That is, the scheduling of travel by [the] grievant, and those persons similarly situated, was predictable and planned by the Agency.
Id. The Arbitrator stated that "under the Barth doctrine, in order for the 'could not be controlled' portion of [5 U.S.C. § 5542(b)(2)(B)(iv)] to be met, there must be a 'total lack of Government control' over the event necessitating the travel. Barth v. United States, 568 F.2d 1329; 215 Ct. Cl. 383 (1978)." Id. Accordingly, the Arbitrator found that the grievants were not entitled to overtime pay under 5 U.S.C. § 5542(b)(2)(B)(iv) or 5 C.F.R. § 550.
Additionally, the Arbitrator found that although the record suggested that the grievants experienced some inconvenience, discomfort and delay in their travel to and from Saudi Arabia, that did not satisfy the established definition for travel under arduous conditions, as claimed by the grievants. The Arbitrator relied on Federal Personnel Manual (FPM) Supplement 990-2, which states that arduous conditions include "'travel over unusually adverse terrain, during severe weather conditions, or to remote, barely accessible facilities by foot, horseback or truck.'" Id. at 8-9 (quoting FPM Supplement 990-2). The Arbitrator found that the employees' travel varied in comfort and convenience, but that it did not constitute travel under arduous conditions and, therefore, did not meet the requirements for payment of hours of work under 5 U.S.C. § 5542(b)(2)(B)(iii) or 5 C.F.R. § 550.(2)
As to the Union's claim that the employees should have been compensated for time spent on standby duty or in an on-call status, the Arbitrator determined that the employees were not entitled to overtime pay under 5 C.F.R. § 551.431 because the record did not reflect that the employees "met the criteria for payment of compensation for time spent awaiting transportation in Bahrain, or during travel, as they were not performing work, or on standby duty, or on-call status[.]" Id. at 10. In this regard, the Arbitrator noted that "the record is barren of any evidence to establish that the 'time spent awaiting transportation' should be designated as 'standby duty' and/or 'on-call status.' The naked labeling such time 'standby' does not meet the Union's burden of proof." Id. The Arbitrator also found that the record did not establish a violation of Article XXXII of the parties' agreement.
Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator's award is based on a nonfact, but for which a different result would have been reached. The Union argues that the event which controlled the travel was Iraq's invasion of Kuwait, which could not be administratively controlled. The Union claims that the Arbitrator's determination that the need for support and maintenance personnel at a supply depot was the controlling event constituted a decision based on a nonfact. In support of its contention, the Union cites the Comptroller General's decision in Gary A. Pace, 68 Comp. Gen. 229 (1989) (Pace).
The Union also contends that the award is inconsistent with law, rule, and regulation because it fails to grant the grievants overtime pay for the time they spent in an on-call status under 5 C.F.R. § 551.431. The Union argues that the time the employees spent awaiting transportation in Bahrain back to the United States meets the conditions for special situations under 5 C.F.R. § 551.431 because the employees were restricted and could not use the time effectively for their own purposes. The Union asserts that the employees' testimony at the arbitration hearing reveals that they were in an on-call status and compensation should be awarded under 5 C.F.R. § 551.431. The Union also disagrees with the Arbitrator's determination that the travel was not carried out under arduous conditions. The Union argues that the Arbitrator's award fails to conform to law, rule, and regulation because the travel was carried out under arduous conditions.
The Agency contends that the Union's exceptions are merely an attempt to relitigate the case before the Authority. The Agency asserts that the Union simply disagrees with the Arbitrator's interpretation of the evidence presented during the hearing and that the exceptions provide no basis for overturning the Arbitrator's award.
IV. Analysis and Conclusions
A. The Award Is Not Based on a Nonfact
The Union asserts that the Arbitrator's award is based on a nonfact, specifically, that the employees' travel was based on an administratively controllable event. The Union contends that the basis for the travel--the invasion of Kuwait by Iraq--was not administratively controllable.
To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. For example, U.S. Department of the Army, Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 44 FLRA 1080 (1992) (Fort Bragg).
The Union has not demonstrated that the Arbitrator's conclusion that the grievants' travel was based on an administratively controllable event is based on a central fact that is clearly erroneous. The Arbitrator found that the invasion of Kuwait by Iraq did not generate the request for volunteers to assist troops at the supply and maintenance depot in Saudi Arabia. Rather, the Arbitrator found that the event that controlled the employees' travel to Saudi Arabia was the Agency's decision to seek volunteers from among its civilian employees to perform tasks at the supply and maintenance depot. The Union's reliance on Pace is misplaced. In Pace, the Comptroller General determined that an employee's tra