National Federation of Federal Employees, Local 1442 (Union) and United States, Department of the Army , Letterkenny Army Depot, Chambersburg, Pennsylvania (Agency)

[ v59 p849 ]

59 FLRA No. 155

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
LOCAL 1442
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
LETTERKENNY ARMY DEPOT
CHAMBERSBURG, PENNSYLVANIA
(Agency)

0-AR-3729

_____

DECISION

April 22, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Wallace Tanksley filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Union filed a grievance alleging that the grievant was entitled to overtime payment for all, rather than only some, of the hours he spent in travel status on a trip to and from a workshop. The Arbitrator denied the grievance, and found that the grievant had been properly compensated. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant and two other employees on the Equal Employment Opportunity (EEO) staff at the Letterkenny Army Depot in Pennsylvania attended a Department of the Army EEO workshop in Nashville, Tennessee from Sunday, April 28, 2002, through Friday, May 3, 2002. With the approval of their supervisor, they shared the driving of an Army vehicle. They left the Depot at 4:00 a.m. on Sunday and arrived in Nashville at about 4:30 p.m. On Friday, they left Nashville at about 10:00 a.m. and arrived at the Depot at about 9:30 p.m.

      For Sunday, which was not one of the grievant's regularly scheduled work days, the grievant was granted 8 hours of compensatory time (comp time). For Friday, a day that the grievant normally would have worked, he was paid for 8 hours as a regular workday and, in addition, was credited with 1½ hours of comp time for the time he spent driving beyond his regular tour of duty. [n2] 

      The Union filed a grievance claiming, as relevant here, that the grievant was entitled to overtime pay for all of his travel time outside his regular tour of duty on both Sunday and Friday.

      The grievance was not resolved and was submitted to arbitration. The parties stipulated to the issues before the Arbitrator as follows:

1) [D]id the Agency violate the Agreement when on 28 April 2002 and 3 May 2002 overtime payment was denied to the grievant . . . for payment when in travel status on these dates and 2) if so, what shall be the remedy.

Award at 1. [n3] 

      The Arbitrator found that the dispute in this case "comes down to the meaning of 5 USC 5542(b)(2)(B)(iv), which provides in pertinent part that computation of time spent in a travel status away from the official-duty station of an employee is not hours of employment unless the travel `results from an event which could not be scheduled or controlled administratively.'" Award at 9. [n4] 

      Before the Arbitrator, the Union argued that the Depot did not schedule or control the timing or the location of the workshop, and, therefore, the grievant was owed pay for all time in travel status. The Agency argued that 5 U.S.C. § 5542(b)(2)(B)(iv) does not apply to the grievant's situation because the workshop was scheduled by the Army, and 5 U.S.C. §5542(b)(2)(B)(iv) has been defined to mean schedule or control by any entity of the Executive Branch. [ v59 p850 ]

      The Arbitrator concluded that the "weight of credible evidence is on the side of the [Agency's] interpretation." Id. at 10. In this regard, the Arbitrator relied on the following authorities.

      First, he found that 5 C.F.R. § 550.112(g) supports the Agency's view. [n5]  The Arbitrator concluded that 5 C.F.R. § 550.112(g) governs official travel away from an employee's official duty station and is consistent with 5 U.S.C. § 5542(b)(2)(B)(iv).

      Second, he found that the Department of Defense Civilian Personnel Management Service, in its FAS (Field Advisory Services) Track Informational Newsletter, made it clear that "`the phrase `the travel cannot be controlled' means `travel is not controlled by any entity of the Executive Branch of the Government.'" Award at 10 (quoting FAS Reference Guide Rule 4). In this respect, the Arbitrator noted that the example of the application of Rule 4 "explains that an event controlled by a University or by the Legislative or Judicial branches of government would qualify traveling employees for pay under the exception." Id.

      Third, the Arbitrator stated that the Authority "has consistently ruled that an event planned and scheduled by any Executive Branch agency precludes payment under the 5 USC 5542(b)(2)(B)(iv) exception to an employee of any Executive Branch agency and has set aside arbitrators' decisions to the contrary." Id. In support, the Arbitrator cited United States Immigration and Naturalization Service, 19 FLRA 319 (1985) (INS) and United States Dep't of Labor, 10 FLRA 491 (1982) (DOL).

      Finally, citing Barth v. U.S., 568 F.2d 1329, 1331-33 (Ct. Cl. 1978) (Barth), the Arbitrator found "[c]ourts have also upheld the interpretation that control by any branch of the Federal Government applies to all agencies within that branch." Award at 11.

      In sum, the Arbitrator found that the grievant was properly compensated, and the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the Arbitrator "disregarded key evidence presented in the case, based his decision on partial facts, focused on the wrong issues, and arrived with findings inconsistent with the intent of the parties['] application of the [labor management agreement], governing law, rule and regulation." Exceptions at 2. We construe the Union's exceptions as claims that the award: (1) is contrary to law or regulation; (2) fails to draw its essence from the parties' agreement; and (3) is based on a non-fact.

      With respect to its contrary to law or regulation argument, the Union asserts that the Arbitrator should have applied 5 C.F.R. § 610.123 and, pursuant to that regulation, awarded the grievant overtime pay for all of the time that he was in a travel status. [n6]  [ v59 p851 ]

      As to its essence exception, the Union asserts that the award is inconsistent with Article 21, Sections 11 and 15 of the parties' agreement.

      Finally, as to its non-fact argument, the Union contends that the Arbitrator's finding that § 5542(b)(2)(B)(iv) disqualifies the grievant for overtime pay is inconsistent with the fact that the Agency "partially compensated" the grievant for the hours spent while in travel status on Sunday and Friday. Exceptions at 4.

B     Agency's Opposition

      The Agency contends that the Union's exceptions provide no basis for finding the award deficient.

      The Agency asserts that the Union has failed to identify how the award violates any law or regulation. According to the Agency, the Union's reference to 5 C.F.R. § 610.123 is misplaced because that section refers to hours of work and does not provide the authority to grant the grievant overtime pay. The Agency contends that the Arbitrator correctly applied the provision that time in travel status away from an employee's official duty station can be compensated when the travel results from an event which could not be scheduled or controlled administratively. Further, the Agency contends that the Union has not demonstrated how the award violates the collective bargaining agreement. Finally, the Agency argues that the Union "has not even identified a non-fact, let alone demonstrating that it is central to the award, but for which the [A]rbitrator would have reached a different conclusion." Opposition at 14.

IV.     Analysis and Conclusions

      When a party's exceptions dispute an award's consistency with law or regulation, we review the questions of law and regulation raised by the award and the exceptions de novo. See, e.g., United States Dep't of Health and Human Services, Centers for Medicare and Medicaid Services, Baltimore, Md., 57 FLRA 704, 706 (2002). In applying the standard of de novo review, the Authority determines whether the Arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

A.     The Award Is Not Contrary to Law

      The Union asserts that the Arbitrator should have applied 5 C.F.R. § 610.123 and, pursuant to that regulation, awarded the grievant overtime pay for all of the time that he was in a travel status.

      However, the Union has not demonstrated that 5 C.F.R. § 610.123, which simply refers to hours of work, was violated such that overtime pay was warranted.Therefore, the Union has not shown that the award conflicts with that regulation. [n7] 

      Accordingly, we deny this exception.

B.     The Award Does Not Fail to Draw its Essence from the Parties' Collective Bargaining Agreement

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). An award will not be found to fail to draw its essence from an agreement merely because a party believes that the arbitrator misinterpreted the agreement. See id. at 576.

      The Union argues that the Arbitrator should have given more weight to testimony as to how the agreement was interpreted in the past regarding overtime payment to other employees. However, interpretation of the parties' agreement is a question solely for the arbitrator because it is the arbitrator's construction of the agreement that the parties have bargained. Id. The Arbitrator's award makes it apparent that he considered all applicable provisions of the parties' agreement when he determined that the grievant was not entitled to additional overtime pay. Nothing in his interpretation of the agreement renders it deficient under the standard set forth above.

      For these reasons, the Union has not presented any evidence to support a finding that this interpretation of the agreement is implausible, irrational, or unconnected to the wording and purpose of the agreement.

      Accordingly, we deny this exception. [ v59 p852 ]

C.     The Award Is Not Based on a Non-Fact

      To establish that an award is based on a non-fact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union has not identified any non-fact on which the award is based. In this respect, contrary to the Union's contention, the fact that the Agency granted some pay to the grievant for travel time is not a factual matter underlying the award but for which the Arbitrator would have reached a different result.

      To the extent that the Union is claiming that witnesses' testimony demonstrates that the award is based on a non-fact, it is clear that the matters concerning which the witnesses testified, including the Agency's practice of granting overtime pay in the past, the duration of the travel, and the unavailability of alternative means of transportation, were disputed by the parties at arbitration. Thus, they cannot serve as the basis of a non-fact assertion. Moreover, whether or not the Agency provided overtime to another employee in another circumstance does not provide a basis on which to find that the award is deficient. An agency must comply with statutory and regulatory requirements governing pay for employees while in travel status. In the circumstances of this case, the Arbitrator correctly found that the grievant was properly compensated.

      Accordingly, we deny this exception.

V.     Decision

      The exceptions are denied.


APPENDIX

ARTICLE 21

TEMPORARY DUTY TRAVEL (TDY)

Section 1. Employees may be required to travel only under the conditions and procedures prescribed by pertinent DOD Joint Travel Regulations. Further, employees required to travel in the course of performing assigned duties shall be paid and shall receive maximum allowable per diem and travel allowances as authorized by the travel approving official and/or applicable regulations.

. . . .

Section 11. When employees are required to travel, the travel will be scheduled on duty days, during their normal duty hours when practical. If an employee is required to travel on non-duty days or during non-duty hours, he/she will be paid at the appropriate overtime rate when applicable.

. . . .

Section 15. The Employer agrees to schedule Saturday or Sunday travel during the Employer's regular basic tour of duty (0730-1615 hours) for employees traveling in a TDY status.

Award at 4.


Concurring Opinion of Chairman Cabaniss:

      I write separately to note another line of Authority precedent relevant to aspects of the exceptions filed here and in many other cases. Exceptions sometimes constitute noting more than disagreement with an arbitrator's findings of fact and evaluation of the evidence and testimony, including the credibility of witnesses and the weight to be given their testimony. Such exceptions constitute nothing more than an attempt to relitigate the case before the Authority, and provide no basis for setting aside the arbitrator's award. See, e.g., United States Small Bus. Admin., Charlotte District Ofc., Charlotte, N.C., 49 FLRA 1656, 1661 (1994).



Footnote # 1 for 59 FLRA No. 155 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 155 - Authority's Decision

   According to the Agency, "at [the grievant's] request, the Agency agreed to convert the one and one-half hours of additional work time on Friday to overtime pay, providing sufficient time remained in his compensatory time account." Opposition at 3.


Footnote # 3 for 59 FLRA No. 155 - Authority's Decision

   The relevant portions of the parties' collective bargaining agreement are set forth in the Appendix to this decision.


Footnote # 4 for 59 FLRA No. 155 - Authority's Decision

   5 U.S.C. § 5542 provides, in part:

Overtime rates; computation
. . . .
(b) For the purpose of this subchapter --
. . . .
(2) time spent in a travel status away from the official-duty station of an employee is not hours of employment unless --
     (A) the time spent is within the days and hours of the regularly scheduled administrative workweek of the employee, including regularly scheduled overtime hours; or
     (B) the travel . . . (iv) results from an event which could not be scheduled or controlled administratively[.]

Footnote # 5 for 59 FLRA No. 155 - Authority's Decision

   5 C.F.R. § 550.112(g) provides, in relevant part:

Computation of overtime work.

      The computation of the amount of overtime work of an employee is subject to the following conditions:

. . . .

      (g) Time in travel status. Time in travel status away from the official duty station of an employee is deemed employment only when:

(1) It is within his regularly scheduled administrative workweek, including regular overtime work; or
(2) The travel --
. . . .
     (iv) 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 the employee to his or her official-duty station.

Footnote # 6 for 59 FLRA No. 155 - Authority's Decision

   5 C.F.R. § 610.123 provides:

Travel on official time.
Insofar as practicable travel during nonduty hours shall not be required of an employee. When it is essential that this be required and the employee may not be paid overtime under § 550.