Community Services Administration (Agency) and National Council of CSA Locals, AFGE, AFL-CIO (Union) 

 7 FLRA No. 32
 
 COMMUNITY SERVICES
 ADMINISTRATION
 Agency
 
 and
 
 NATIONAL COUNCIL OF CSA
 LOCALS, AFGE, AFL-CIO
 Union
 
                                            Case No. O-AR-221
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR SEYMOUR STRONGIN FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR, THIS DISPUTE CONCERNS THE AGENCY'S
 SCHEDULING OF A FOUR AND ONE-HALF DAY TRAINING PROGRAM.  THE PROGRAM
 BEGAN AT 9 A.M. ON MONDAY MORNING AND ENDED AT NOON ON FRIDAY.
 CONSEQUENTLY, EMPLOYEES FROM OUTSIDE THE WASHINGTON, D.C.  AREA WERE
 REQUIRED TO TRAVEL ON SUNDAY IN ORDER TO ATTEND THE OPENING SESSION.
 THE UNION FILED A GRIEVANCE WHICH WAS ULTIMATELY SUBMITTED TO
 ARBITRATION CLAIMING THAT THE AGENCY'S FAILURE TO CONSIDER THE SUNDAY
 TRAVEL TIME AS COMPENSABLE OVERTIME VIOLATED LAW AND THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT.
 
    THE ARBITRATOR REJECTED THE UNION'S CLAIM THAT THE SUNDAY TRAVEL TIME
 SHOULD HAVE BEEN COMPENSABLE TIME.  HOWEVER, THE ARBITRATOR DID FIND
 THAT THE AGENCY VIOLATED THE AGREEMENT BY NOT SCHEDULING THE TRAINING SO
 AS TO ALLOW EMPLOYEES TO TRAVEL DURING THEIR REGULARLY SCHEDULED
 WORKWEEK.  THUS, THE ARBITRATOR CONCLUDED THAT THE TRAINING SHOULD HAVE
 BEEN SCHEDULED, FOR EXAMPLE, TO START ON A TUESDAY AND END ON THE
 SUBSEQUENT MONDAY.  THEREFORE, HE RULED THAT THE EMPLOYEES LOST AN
 ADDITIONAL TWO DAYS OF PER DIEM PAYMENTS FOR THE SATURDAY AND SUNDAY
 THAT WOULD HAVE INTERVENED IF THE AGENCY HAD SCHEDULED THE TRAINING IN
 ACCORDANCE WITH THE AGREEMENT.  ACCORDINGLY, THE ARBITRATOR SUSTAINED
 THE GRIEVANCE AND DIRECTED IN PERTINENT PART:
 
    (T)HE PAYMENT TO EACH OF THE EMPLOYEES INVOLVED IN THE GRIEVANCE OF
 TWO DAYS' PER DIEM AT
 
    THE RATE PAYABLE AT THE TIME OF THE TRAINING PROGRAM.
 
    THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION. /2/
 
    AS ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO
 APPLICABLE LAW AND REGULATION.  THE AGENCY ARGUES THAT SINCE THE
 EMPLOYEES IN THIS CASE WERE NOT IN A TRAVEL STATUS FOR THE TWO DAYS IN
 QUESTION THE AWARD OF PER DIEM IS WITHOUT BASIS IN ANY LAW OR
 REGULATION.
 
    THE AUTHORITY AGREES.  IN THIS CASE THERE IS NO PROVISION IN ANY
 RELEVANT STATUTE OR REGULATION THAT PERMITS THE PAYMENT OF THE ORDERED
 PER DIEM.  AS NOTED, THE TRAINING SESSION ENDED AT NOON ON FRIDAY AND
 THE EMPLOYEES APPARENTLY RETURNED TO THEIR PERMANENT DUTY STATIONS THAT
 AFTERNOON.  CONSEQUENTLY, THEY WERE NOT IN AN OFFICIAL TRAVEL STATUS ON
 THE SUBSEQUENT SATURDAY AND SUNDAY FOR WHICH THE ARBITRATOR DIRECTED THE
 PER DIEM BE PAID.  IT IS CLEAR UNDER APPLICABLE LAW AND REGULATIONS
 AUTHORIZED EXPENSES INCURRED BY AN EMPLOYEE FOR SUBSISTENCE WHILE IN AN
 OFFICIAL TRAVEL STATUS.  SEE 5 U.S.C. 5701-5709(1976);  FEDERAL PROPERTY
 MANAGEMENT REGULATIONS (FPMR) 101-7, CHAPTER 1, PART 7 (MAY 1973).  THE
 COMPTROLLER GENERAL HAS HELD THAT THE PURPOSE OF PER DIEM IS TO
 REIMBURSE A TRAVELER FOR THE ADDITIONAL COSTS OF MEALS AND LODGING WHILE
 ON TEMPORARY DUTY WHILE STILL MAINTAINING A RESIDENCE AT HIS OR HER
 PERMANENT DUTY STATION AND THAT WHERE SUCH ADDITIONAL EXPENSES DO NOT
 OCCUR, THE BASIS FOR THE SUBSISTENCE ALLOWANCE FAILS AND AN AGENCY MAY
 NOT PAY PER DIEM.  SEE MATTER OF W. PAUL WOODARD, B-185932, MAY 27,
 1976.  THUS, THERE IS NO BASIS UNDER APPLICABLE LAW AND REGULATIONS
 GOVERNING THE PAYMENT OF PER DIEM FOR THE PER DIEM DIRECTED BY THE
 ARBITRATOR IN THIS CASE SINCE NO SUBSISTENCE EXPENSES WERE ACTUALLY
 INCURRED BY THE EMPLOYEES.
 
    IT IS NOTED THAT THE ARBITRATOR DETERMINED THAT HAD THE TRAINING BEEN
 PROPERLY SCHEDULED IN ACCORDANCE WITH THE AGREEMENT THE EMPLOYEES
 WOULD
 HAVE BEEN IN AN OFFICIAL TRAVEL STATUS FOR THE TWO DAYS IN QUESTION AND
 IT WAS ON THIS BASIS AND WITH REFERENCE TO THE BACK PAY ACT OF 1966 /3/
 THAT THE ARBITRATOR FASHIONED THE REMEDY DIRECTING THE PAYMENT OF TWO
 DAYS PER DIEM.  HOWEVER, NEITHER THE BACK PAY ACT NOR ITS IMPLEMENTING
 REGULATIONS /4/ AUTHORIZE THE PAYMENT OF PER DIEM AS PART OF AN AWARD OF
 BACKPAY.
 
    WHILE IT IS WELL ESTABLISHED THAT THE BACK PAY ACT PROVIDES THE
 APPROPRIATE AUTHORITY TO REMEDY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL
 ACTION THAT HAS DENIED AN AGGRIEVED EMPLOYEE "PAY, ALLOWANCES, OR
 DIFFERENTIALS" THAT THE EMPLOYEE WOULD HAVE EARNED OR RECEIVED IF THAT
 ACTION HAD NOT OCCURRED, VETERANS ADMINISTRATION HOSPITAL AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LODGE 2201, 4 FLRA NO. 57(1980), THE
 "PAY, ALLOWANCES, OR DIFFERENTIALS" THAT ARE PROPER COMPONENTS OF AN
 AWARD OF BACKPAY DO NOT INCLUDE THE PAYMENT OF PER DIEM.  HURLEY V.
 UNITED STATES, 624 F.2D 93 (10TH CIR. 1980);  MORRIS V. UNITED STATES,
 595 F.2D 591 (CT. CL. 1979).  /5/ THE PAYMENT OF PER DIEM IS NOT
 EXPRESSLY AUTHORIZED BY THE ACT OR THE REGULATIONS AND PER DIEM IS NOT
 IN THE NATURE OF THE ALLOWANCES THAT ARE PROPERLY PAYABLE UNDER 5 CFR
 550.802(F)(1981).  THE "PAY, ALLOWANCES, OR DIFFERENTIALS" ENCOMPASSED
 BY THE ACT CONSTITUTE "NORMAL LEGITIMATE EMPLOYEE BENEFITS" IN THE
 NATURE OF EMPLOYMENT COMPENSATION OR EMOLUMENTS WHICH DO NOT EMBRACE A
 REIMBURSEMENT PAYMENT SUCH AS PER DIEM.  SEE HURLEY, 624 F.2D AT 94-05.
 THUS, THE BACK PAY ACT OF 1966 PROVIDES NO BASIS FOR THE ARBITRATOR'S
 AWARD IN THIS CASE.  /6/ SEE MORRIS, 595 F.2D AT 594.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES, THE ARBITRATOR'S AWARD IS MODIFIED BY STRIKING ALL
 DIRECTIONS FOR THE PAYMENT OF PER DIEM.  AS SO MODIFIED THE AWARD IS
 SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 19, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ IN ITS OPPOSITION, THE UNION ALSO CONTENDS THAT THE AGENCY'S
 EXCEPTION IS PROCEDURALLY DEFICIENT FOR VARIOUS REASONS.  HOWEVER, THE
 AUTHORITY FINDS NO BASIS FOR DETERMINING THAT THE AGENCY'S EXCEPTION IS
 DEFICIENT ON PROCEDURAL GROUNDS.
 
    /3/ 5 U.S.C. (SEC.) 5596 (1976 & SUPP. III 1979).  WHILE THE
 ARBITRACOR DID NOT CITE THE BACK PAY ACT SPECIFICALLY, HE DID REFER TO
 NUMEROUS COMPTROLLER GENERAL DECISIONS WHICH STAND FOR THE GENERAL
 PROPOSITION THAT A VIOLATION OF A COLLECTIVE BARGAINING AGREEMENT MAY BE
 AN UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTION REQUIRING THE PAYMENT OF
 BACKPAY.  NONE OF THOSE DECISIONS INVOLVED PAYMENTS OF PER DIEM.
 
    /4/ 5 CFR PART 550,SUBPART H (1981).
 
    /5/ IN ITS OPPOSITION, THE UNION ATTEMPTS TO DISTINGUISH MORRIS,
 WHICH APPLIED THE BACK PAY ACT PRIOR TO ITS 1978 AMENDMENTS, ON THE
 GROUND THAT THE AMENDED LANGUAGE OF THE ACT AUTHORIZES PER DIEM AS A
 COMPONENT OF BACKPAY.  HOWEVER THE AMENDED LANGUAGE OF THE BACK PAY ACT
 PROVIDES NO BASIS FOR FINDING THAT PER DIEM WAS SPECIFICALLY INTENDED BY
 CONGRESS TO BE A COMPONENT OF AN AWARD OF BACKPAY IN CIRCUMSTANCES SUCH
 AS THOSE PRESENTED IN THE INSTANT CASE.  NOTHING IN THE LEGISLATIVE
 HISTORY OF THE AMENDMENTS TO THE ACT WOULD SUPPORT SUCH A FINDING AND IT
 IS NOTED THAT THE IMPLEMENTING REGULATIONS TO THE ACT AS AMENDED
 CONTINUE TO PROVIDE NO BASIS FOR THE PAYMENT OF PER DIEM IN THESE
 CIRCUMSTANCES.  SEE HURLEY V. UNITED STATES, 624 F.2D 93, 95 (10TH CIR.
 1980) (DECIDED ON THE BASIS OF THE BACK PAY ACT, AS AMENDED).
 
    /6/ THE UNION HAS REQUESTED AN OPPORTUNITY TO MORE FULLY BRIEF THE
 ISSUE OF THE BACK PAY ACT.  HOWEVER, THE UNION'S POSITION IS ADEQUATELY
 PRESENTED IN ITS OPPOSITION AND THE AUTHORITY HAS FULLY CONSIDERED THE
 ISSUE IN MAKING ITS DECISION.  ACCORDINGLY, NO FULLER BRIEFING IS
 NECESSARY AND THE REQUEST IS THEREFORE DENIED.