47:0786(73)AR - - Air Force, OK City Air Logistics Command, Tinker AFB, OK and AFGE Local 916 - - 1993 FLRAdec AR - - v47 p786
[ v47 p786 ]
The decision of the Authority follows:
47 FLRA No. 73
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS COMMAND
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
June 2, 1993
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 Norman Bennett filed by the Agency 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 did not file an opposition to the Agency's exception.
The Arbitrator sustained a grievance alleging that the grievant was entitled to overtime compensation for certain time spent traveling. For the following reasons, we are unable to determine whether the award is deficient. Accordingly, we will remand the award to the parties for resubmission to the Arbitrator.
II. Background and Arbitrator's Award
The grievant, a WG-10 mechanic assigned to Tinker Air Force Base, was directed to travel to Anderson Air Force Base in Guam to repair an aircraft. The grievant departed for Guam on a Sunday, and arrived there the following Wednesday. After completing the repairs, the grievant left Guam on a Tuesday, and arrived home early Wednesday morning. The Agency paid the grievant for 3 and 1/2 hours of overtime for his travel time on Sunday during those hours which corresponded to the grievant's normal work hours, in accordance with 5 C.F.R. 551.422.(1) The grievant was not paid overtime for any other travel time associated with the trip. The grievant filed a grievance alleging that he was entitled to an additional 35 and 3/4 hours of overtime in connection with the trip. When the grievance was not resolved, it was submitted to arbitration on the following issue, as stated by the Arbitrator:
[W]hether [the grievant] was entitled to overtime pay for travel time during a trip to . . . Guam. If so, what shall be the remedy[?]
Award at 1.
The Arbitrator applied 5 U.S.C. § 5542, to resolve the grievance.(2) 5 U.S.C. § 5542 provides, among other things, that for employees paid under the General Schedule (GS), time spent traveling outside an employee's official duty station is not work time, for purposes of determining entitlement to overtime compensation, unless the event necessitating the travel could not be scheduled or controlled administratively.
The Arbitrator noted the testimony of the grievant's second-level supervisor that, although the supervisor did not have control over the relevant flight schedules, he did have control over the flights which the grievant selected. Therefore, the supervisor testified, it was his belief that the Agency had administrative control over the grievant's travel. After reviewing the testimony of the witness and guidance material offered by the Agency, however, the Arbitrator determined that, "[t]he event necessitating the travel in this case was an aircraft needing repairs[,]" and, as such, the event could not be scheduled or controlled administratively. Award at 3. Consequently, the Arbitrator found that the grievant was entitled to receive overtime compensation for travel during his nonwork hours. As his award, the Arbitrator directed the Agency to pay the grievant overtime in accordance with his findings.
III. Positions of the Parties
The Agency argues that the award is contrary to 5 U.S.C.§ 5542. In this regard, the Agency contends that, contrary to the Arbitrator's determination, the event necessitating the grievant's travel was the scheduling of the repair to the aircraft, and not the aircraft breakdown. In this connection, the Agency asserts that the scheduling of the repair was within its "full administrative control[,]" because the Agency was fully aware of, and approved, the grievant's travel schedule. Exception at 5. In support of its arguments, the Agency relies on the Comptroller General's decisions in Charles A. Bowsher, 49 Comp. Gen. 209 (1969) (Bowsher) and Department of Housing and Urban Development, 70 Comp. Gen. 77 (1990).
The Union did not file an opposition to the Agency's exception.
IV. Analysis and Conclusions
The grievant in this case is a WG employee. See Award at 1. WG employees are excluded from coverage of 5 U.S.C. § 5542 by 5 U.S.C. § 5541.(3) Accordingly, 5 U.S.C. § 5542, relied on by the Agency and the Arbitrator, does not apply. Instead, 5 U.S.C. § 5544 expressly applies to WG employees and addresses their entitlement to overtime compensation for time spent in a travel status.(4)
Sections 5542 and 5544 are worded similarly. Moreover, as interpreted by the Comptroller General, both sections require that two conditions must be satisfied before travel during nonwork hours will qualify as hours of work for purposes of entitlement to overtime compensation. See, for example, Benjamin Brown and John R. Schacht, 69 Comp. Gen. 385, 386 (1990) (Schacht). See also Comp. Gen. No. B-227489, (November 30,1987) (unpublished). First, the event requiring off-duty travel must be administratively uncontrollable.(5) Second, there must be an immediate official necessity, occasioned by the administratively uncontrollable event, for the travel.(6) Schact, 69 Comp. Gen. at 386.
The two sections differ in one respect, however. In this regard, 5 U.S.C. § 5542 expressly includes return travel to an official duty station as hours of work when the initial travel results from an administratively uncontrollable event. See, for example, Dr. L. Friedman, 65 Comp. Gen. 772, 774 (1986). On the other hand, 5 U.S.C. § 5544, as interpreted by the Comptroller General, requires that return travel must also satisfy the same two conditions in order to qualify as hours of work. That is, the event requiring nonduty return travel must be administratively uncontrollable, and there must be an immediate official necessity occasioned by the uncontrollable event in order for the travel time to qualify as hours of work. See B-227489, (November 30, 1987) (unpublished). See also John B. Schepman, et al., 60 Comp. Gen. 681, 684 (1981).
In this case, the Arbitrator determined that the event necessitating the grievant's travel was "an aircraft needing repairs[,]" and that the event could not be scheduled or controlled administratively. Award at 3. However, the Arbitrator did not determine whether there was an official immediate necessity for the grievant to travel to Guam during his nonwork hours. Moreover, the Arbitrator did not separately address the grievant's return trip from Guam.
We are unable to determine from the award, and the record as a whole, whether the grievant's travel resulted from an event that was administratively uncontrollable, as interpreted by the Comptroller General, and whether there was an official immediate necessity for the grievant to travel during nonwork hours. In addition, we are unable to determine whether the award was intended to cover the grievant's return travel to his official duty station or, if it was, whether such travel also satisfied relevant requirements. Therefore, we are unable to determine whether the award is consistent with 5 U.S.C. § 5544, as interpreted and applied by the Comptroller General.
As we are unable to determine whether the award is deficient, we will remand the award to the parties, who should, absent settlement, request the Arbitrator to clarify the award consistent with this decision.
The award is remanded to the parties for resubmission to the Arbitrator in accordance with our decision.
(If blank, the decision does not have footnotes.)
1. 5 C.F.R. 551.422(a)(4) provides that time spent traveling shall be considered hours of work under the Fair Labor Standards Act (FLSA) when:
[a]n employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on nonwork days that correspond to the employee's regular working hours.
2. Although the Arbitrator initially cited 5 U.S.C. § 5541(a) and (b), the provision quoted in the award is 5 U.S.C. § 5542(a) and (b), which provides that, for purposes of entitlement to overtime compensation, time spent in a travel status away from the official-duty station of an employee is not hours of work unless:
the travel . . . results from an event which could not be scheduled or controlled administratively, including travel by an employee to such an event and the return of such employee from such event to his or her official-duty station.
3. 5 U.S.C. § 5541(2)(xi) excludes WG employees from coverage of section 5542 by providing that WG employees are not included in the definition of "employee . . . except as provided by section 5544 . . . . "
4. 5 U.S.C. § 5544(a)(iv) provides, in pertinent part, that for WG employees, time spent in a travel status away from the official duty station is not hours of work unless the travel:
results from an event which could not be scheduled or controlled administratively.
5. The Comptroller General has held that, for an event to qualify as administratively uncontrollable, there must be a total lack of Government control arising from a compelling reason of an emergency nature in the scheduling of the event. See Gary A. Pace, 68 Comp. Gen. 229, 231 (1989) (Pace) (citing Dr. L. Friedman, 65 Comp. Gen. 772 (1986)). See also Comp. Gen. No. B-231475 (August 12, 1988) (unpublished).
6. In determining whether an immediate official necessity exists, the Comptroller General looks to the actual necessity for immediate travel, and the sense of urgency stemming from the request that assistance be provided. Pace, 68 Comp. Gen. at 231. In assessing the sense of urgency, the C