54:1495(132)AR - - Naval Underseas Warfare Center, Newport, RI & NAGE, Federal Union of Scientists and Engineers - - 1998 FLRAdec AR - - v54 p1495



[ v54 p1495 ]
54:1495(132)AR
The decision of the Authority follows:


54 FLRA No. 132

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

NAVAL UNDERSEAS WARFARE CENTER

NEWPORT, RHODE ISLAND

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

FEDERAL UNION OF SCIENTISTS AND ENGINEERS

(Union)

0-AR-3034

_____

DECISION

November 20, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Roberta Golick 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance alleging that the grievant was entitled under the Federal Employees Pay Act (FEPA) to overtime pay for travel outside of duty hours. The Arbitrator directed the Agency to compensate the grievant for time spent in travel.

For the following reasons, we conclude that the award is not deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The Agency "is a research and development laboratory" for the Navy. Award at 2. Among other things, the Agency tests and certifies certain software and hardware systems that the Navy purchases from the Lockheed Martin Corporation. By contract, Lockheed Martin "ma[kes] available its testing facilities to [the Agency] and . . . determine[s] when its testing facilities are available." Id. at 3. The parties stipulated to the Arbitrator that, although the Agency has attempted to reschedule these tests, Lockheed Martin has "refused to reschedule the tests so as not to disrupt the work schedule of its own employees." Id.

The grievant is an electrical engineer with the Agency's laboratory in Newport, Rhode Island. His "regularly scheduled hours are 9:00 a.m. to 5:30 p.m., Monday through Friday." Id. at 2. On one particular Friday, the grievant traveled to the Lockheed Martin Corporation facility in Syracuse, New York "to perform a Government Independent Test" (hereinafter, "the test") on certain software and hardware systems purchased by the Navy. Id. at 3. "Lockheed Martin . . . scheduled the . . . [t]est to occur on Saturday . . . from 6:00 a.m. to 6:00 p.m." Id. at 3. The grievant "returned to his place of residence on Sunday morning . . . ." Id.

The grievant requested overtime pay for the return portion of his trip. When the Agency refused to pay the grievant overtime pay, the Union filed a grievance. The parties were unable to resolve the grievance and the matter was submitted to arbitration. The Arbitrator framed the issue as:

[w]hether [the] [g]rievant . . . is entitled, under [f]ederal statutes and regulations, to overtime pay for time spent in travel status between [the Agency] in Newport, Rhode Island and Lockheed Martin Corporation in Syracuse, New York, on [Sunday] . . . ? If so, what shall the remedy be?

Id. at 1.

The Arbitrator stated that the grievance was governed by 5 U.S.C. º 5542(b)(2)(B)(iv), which, according to the Arbitrator, is an exception to the general rule that "time spent in a travel status away from the official-duty station of an employee" does not constitute hours of employment.(1) Id. at 5. Under this exception, time spent in a travel status "does constitute hours of employment if 'the travel results from an event which could not be scheduled or controlled administratively [by the Agency] . . . .'" Id. (emphasis in original). In the Arbitrator's view, the issue before him was whether the test at Lockheed Martin could have been controlled administratively by the Agency.

The Arbitrator rejected the Agency's argument that it had administrative control over the tests necessitating the grievant's travel. According to the Arbitrator, "the record offer[ed] no information that the [Agency] ever had control of Lockheed's testing schedule. . . . The only control the [Agency] exerted was to knowingly enter into th[e] contract with Lockheed." Id. at 7. The Arbitrator also rejected the Agency's argument that it retained control over when the grievant traveled to and from the test. The Arbitrator stated that "[o]nce it is found that the event [is] outside the [agency's] control, travel to and from the event that occurs outside normal duty hours is deemed hours of employment." Id. at 8.

The Arbitrator sustained the grievance, determining that the grievant "[wa]s entitled under federal statutes and regulations to overtime pay for time spent in travel status" from Lockheed Corporation in Syracuse to the Agency in Newport on December 18, 1994. Id. at 9. The Arbitrator directed the Agency to compensate the grievant accordingly.

III. Positions of the Parties

A. Agency's Exceptions

The Agency excepts to the award on three grounds. First, the Agency claims the award is based on nonfacts. According to the Agency, the Arbitrator's findings -- "that the employee was required to be present" at the test and "that the travel to the test was . . . at the complete disposition of the contractor" -- are inconsistent with the evidence presented. Exceptions at 3. The Agency maintains that the evidence demonstrates that the "travel was ordered and controlled by the agency" and, therefore, the award is based on nonfacts. Id.

Second, the Agency claims that the award fails to conform to law, rule, or regulation. In support, the Agency asserts that the test was not the controlling reason for the travel. Rather, the Agency asserts that its "decision to send the grievant to witness the test prompted the travel" and, therefore, overtime is not authorized under FEPA. Id. at 2.

Finally, the Agency states that "[p]ay decisions of this type are so explicit, [and] well defined" by Authority, Comptroller General, and federal court precedent "that to allow this decision to stand . . . would be a clear violation of public policy." Id. at 3-4.

B. Union's Opposition

The Union maintains that the Agency is merely disagreeing with the Arbitrator's evaluation of evidence, his findings, and his conclusions. The Union claims that the Arbitrator "clearly understood the issue before her, applied the appropriate test [under 5 U.S.C. º 5542(b)(2)(B)(iv)], and considered the relevant case law." Opposition at 3.

IV. Analysis and Conclusions

A. The Award is not Based on Nonfacts

To establish that an award is based on nonfacts, the appealing party must demonstrate that the central facts underlying the award are clearly erroneous, but for which a different result would have been reached by the arbitrator. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

The Agency challenges the Arbitrator's findings that the grievant was required to be present at the test and that the Agency had no control over the scheduling of the test. These findings concern factual matters that the parties disputed at arbitration. See Award at 4, 8. Therefore, the Agency's challenge does not provide a basis for finding the award deficient because it is based on a nonfact. See Lowry, 48 FLRA at 594. Accordingly, we deny this exception.

B. The Award is not Contrary to the Federal Employees Pay Act, 5 U.S.C. º 5542(b)(2)(B)(iv)

The Authority reviews questions of law raised in an exception to an arbitrator's award de novo. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law based upon the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

The general rule regarding overtime pay under FEPA is that time spent in a travel status away from the official-duty station of an employee does not constitute hours of work. See 5 U.S.C. º 5542(b)(2). As an exception, FEPA provides that time spent in a travel status constitutes hours of work for overtime purposes if 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." 5 U.S.C. º 5542(b)(2)(B)(iv). This exception has been interpreted by the Comptroller General to authorize compensation for overtime if two elements are met:

(1) the travel results from an event that could not be scheduled or controlled administratively; and

(2) there is an immediate official necessity concerning the event that requires travel outside the employee's regular duty hours.

See Barth v. U.S., 568 F.2d 1329, 1332 (Ct. Cl. 1978); Jordan, 72 Comp. Gen. 286, 287 (1993); Department of Housing and Urban Development, 70 Comp. Gen. 77 (1990); William A. Lewis, et. al, 69 Comp. Gen. 545, 547 (1990).(2)

With respect to the first requirement, the Arbitrator set forth specific factual findings on which he based his legal conclusion that the test was not scheduled or controlled administratively by the Agency. In particular, the Arbitrator found that: (1) the event necessitating the grievant's travel away from his official duty station was the test at Lockheed Martin; (2) Lockheed Martin controlled the availability of the testing facilities and the scheduling of the tests; and (3) the Agency had no control over the scheduling of the tests. See Award at 5-7. The Authority accords deference to an arbitrator's factual findings because the parties bargained for the facts to be found by an arbitrator chosen by them. See Lowry, 48 FLRA at 593-94. These factual findings, to which we defer, fully support the Arbitrator's legal conclusion that the grievant's travel resulted from an event that was not administratively controlled by the Agency, satisfying the first requirement set forth above. Compare National Treasury Employees Union and Federal Deposit Insurance Corporation, 53 FLRA 1469, 1482 (1998).

The Agency does not challenge the Arbitrator's determination with respect to the second requirement set forth above. As both requirements are satisfied, we conclude that the award is not contrary to 5 U.S.C. º 5542(b)(2)(B)(iv). Cf. Health Care Financing Administration and American Federation of Government Employees, AFL-CIO, Local 1923, 20 FLRA 583 (1985) (grievant's travel did not result from an event that could not be scheduled or controlled administratively). Accordingly, we deny this exception.

C. The Award is not Contrary to Public Policy

The Agency claims that the Arbitrator's award granting overtime to the grievant for time spent in travel status is contrary to public policy because it ignores applicable law and precedent pertaining to pay decisions of this type. In Social Security Administration and American Federation of Government Employees, Local 1923, 32 FLRA 765 (1988) (Social Security), the Authority addressed whether a claim that an award is contrary to public policy presents a ground for review under section 7122(a)(2) of the Statute:

Under section 7122(a)(2) of the Statute, we will find an arbitration award deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. In the private sector, courts will find an arbitration award deficient when the award is contrary to public policy. However, this ground is "extremely narrow." U.S. Postal Service v. National Association of Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987), cert. dismissed, 108 S. Ct. 1589 (1988) (NALC). In order to find the award deficient, the public policy in question must be "explicit," "well defined, and dominant." W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983) (W.R. Grace). In addition, the policy is to be ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id.; accord United Paperworkers v. Misco, Inc., 108 S. Ct. 364, 373 (1987) (Misco). The violation of such a public policy "must be clearly shown" if an award is to be found deficient. Misco, 108 S. Ct. at 373-74.

Social Security, 32 FLRA at 767-68.

The Agency has not demonstrated that the Arbitrator's finding that the grievant was entitled to overtime under FEPA violates an "explicit" public policy based on "well defined" and "dominant" laws and legal precedents. Rather, the Agency's exception is a reiteration of its nonfact and contrary to law exceptions. As explained above, these exceptions provide no basis for finding the award deficient. Applying Authority precedent, the Agency's exception does not provide a basis for finding the award deficient under section 7122(a)(2) of the Statute as contrary to public policy. See National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, 51 FLRA 1265, 1270-71 (1996); Social Security, 32 FLRA at 767-68. Accordingly, we deny this exception.

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:
 

1. 5 U.S.C. º 5542(b)(2)(B)(iv), entitled