10:0491(82)AR - Labor and National Council of Field Labor Locals, AFGE -- 1982 FLRAdec AR

 10 FLRA No. 82
 
 UNITED STATES
 DEPARTMENT OF LABOR
 Agency
 
 and
 
 NATIONAL COUNCIL OF FIELD
 LABOR LOCALS, AMERICAN
 FEDERATION OF GOVERNMENT
 EMPLOYEES
 Union
 
                                            Case No. O-AR-187
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR THOMAS M. COOLEY II 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 FILED
 AN OPPOSITION.
 
    THE DISPUTE IN THIS MATTER CONCERNS THE GRIEVANT'S CLAIM FOR OVERTIME
 COMPENSATION.  THE GRIEVANT WAS REQUIRED TO TRAVEL TO PHILADELPHIA FROM
 HIS DUTY STATION OF PITTSBURGH TO ATTEND A TWO-DAY CONFERENCE.  PURSUANT
 TO TRAVEL ARRANGEMENTS MADE FOR HIM, HE TRAVELED TO PHILADELPHIA ON
 TUESDAY MORNING MAY 13, 1980, FOR THE CONFERENCE ON TUESDAY AND
 WEDNESDAY, AND HE RETURNED TO PITTSBURGH ON WEDNESDAY EVENING AFTER THE
 CONFERENCE WAS COMPLETED.  THE GRIEVANT SUBMITTED A CLAIM FOR OVERTIME
 COMPENSATION FOR 4 3/4 HOURS SPENT IN TRAVEL TO AND FROM PHILADELPHIA
 THAT WAS IN ADDITION TO HIS NORMAL EIGHT HOURS OF DUTY ON BOTH TUESDAY
 AND WEDNESDAY.  HIS CLAIM WAS DENIED AND HE FILED A GRIEVANCE PROTESTING
 THE DENIAL THAT WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR ACKNOWLEDGED THAT THE GRIEVANT'S CLAIM WAS GOVERNED BY
 THE PROVISION OF 5 U.S.C. 5542 PROVIDING THAT 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." 5 U.S.C.
 5542(B)(2)(B)(IV)(1976).  WITH RESPECT TO THE GRIEVANT'S TRAVEL TO
 PHILADELPHIA, THE ARBITRATOR QUESTIONED WHETHER THE CONFERENCE WAS AN
 EVENT WHICH COULD BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY BY THE
 AGENCY.  THE ARBITRATOR FIRST RECOGNIZED THAT THE AGENCY "COULD, OF
 COURSE, INFLUENCE THE SCHEDULING." IN ADDITION, HE NOTED THAT THE
 CONFERENCE WAS IN FACT SCHEDULED ON TUESDAY BY REQUEST OF THE AGENCY.
 HOWEVER, HE ALSO OBSERVED THAT THE OTHER PARTY TO THE CONFERENCE WAS NOT
 COMPELLED TO HAVE AGREED TO THAT REQUEST.  THEREFORE, HE HELD THAT UNDER
 SECTION 5542 THE CONFERENCE WAS NOT AN EVENT THE SCHEDULING AND CONTROL
 OF WHICH COULD BE DICTATED BY THE AGENCY AND THAT THE GRIEVANT'S TRAVEL
 TIME TO PHILADELPHIA WAS ACCORDINGLY COMPENSABLE HOURS OF EMPLOYMENT.
 WITH RESPECT TO THE GRIEVANT'S RETURN TRIP TO PITTSBURGH, THE ARBITRATOR
 RULED THAT UNDER SECTION 5542 A RETURN TRIP IS COMPENSABLE WHEN THE
 INITIAL TRAVEL TIME QUALIFIES AS HOURS OF EMPLOYMENT.  ACCORDINGLY, THE
 ARBITRATOR AWARDED THE GRIEVANT 4 3/4 HOURS OF OVERTIME COMPENSATION.
 
    AS ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS DEFICIENT AS
 CONTRARY TO 5 U.S.C. 5542(B)(2).  THE AUTHORITY AGREES.
 
    CONTRARY TO THE DETERMINATION OF THE ARBITRATOR, THE GRIEVANT'S
 TRAVEL TIME TO AND FROM PHILADELPHIA IS NOT COMPENSABLE HOURS OF
 EMPLOYMENT UNDER 5 U.S.C.  5542(B)(2).  IN TERMS OF THIS CASE, THE ONLY
 CONDITION UNDER WHICH TIME SPENT IN A TRAVEL STATUS MAY PROPERLY BE
 COMPENSATED AS HOURS OF EMPLOYMENT IS THAT SET FORTH IN SECTION
 5542(B)(2)(B)(IV).  /1/ AS RECOGNIZED BY THE ARBITRATOR, THIS PROVISION
 REQUIRES THAT THE EVENT WHICH NECESSITATES THE TRAVEL BE ONE WHICH COULD
 NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.  HOWEVER, THE
 GRIEVANT'S TRAVEL TO PHILADELPHIA DID NOT RESULT FROM SUCH AN EVENT
 WITHIN THE MEANING OF SECTION 5542(B)(2)(B)(IV).  AS EXPRESSLY NOTED BY
 THE ARBITRATOR, THE CONFERENCE WAS IN FACT SPECIFICALLY SCHEDULED FOR
 TUESDAY AND WEDNESDAY BY THE AGENCY'S SOLICITOR'S OFFICE IN
 PHILADELPHIA.  THUS, FOR PURPOSES OF THE STATUTORY PROVISION, THE
 CONFERENCE WAS SCHEDULED ADMINISTRATIVELY BY THE AGENCY.  SEE BARTH V.
 UNITED STATES, 568 F.2D 1329, 1331 (CT. CL. 1978).
 
    LIKEWISE, UNDER THE STATUTORY PROVISION, THE CONFERENCE WAS NOT AN
 EVENT WHICH COULD NOT HAVE BEEN CONTROLLED ADMINISTRATIVELY.  CONTRARY
 TO THE ARBITRATOR'S DETERMINATION, CONTROL UNDER SECTION
 5542(B)(2)(B)(IV) IS NOT JUDGED ON WHETHER IT CAN BE "DICTATED" BY THE
 AGENCY.  THE COURT OF CLAIMS RULED IN BARTH WITH RESPECT TO THE "COULD
 NOT BE . . . CONTROLLED" LANGUAGE THAT IN ORDER FOR THE TRAVEL TIME TO
 BE COMPENSABLE HOURS OF EMPLOYMENT, THERE MUST BE "A TOTAL LACK OF
 GOVERNMENT CONTROL." 568 F.2D AT 1332.  IN THIS CASE, THE ARBITRATOR
 EXPRESSLY FOUND THAT EACH PARTY INFLUENCED THE SCHEDULING OF THE
 CONFERENCE.  ACCORDINGLY, THERE WAS NOT A TOTAL LACK OF AGENCY CONTROL,
 AND UNDER THE STATUTORY PROVISION THE CONFERENCE WAS NOT UNCONTROLLABLE
 ADMINISTRATIVELY.  CONSEQUENTLY, THE GRIEVANT'S TRAVEL TIME TO
 PHILADELPHIA DOES NOT MEET THE REQUIREMENTS OF SECTION 5542(B)(2), AND
 SUCH TIME THEREFORE CANNOT CONSTITUTE COMPENSABLE HOURS OF EMPLOYMENT.
 
    CONTRARY TO THE ARBITRATOR'S DETERMINATION WITH RESPECT TO THE
 GRIEVANT'S RETURN TRIP, IT HAS BEEN UNIFORMLY HELD AND INSTRUCTED THAT A
 RETURN TRIP ITSELF MUST MEET THE CONDITIONS OF SECTION 5542(B)(2) IN
 ORDER TO HAVE SUCH TRAVEL TIME CONSTITUTE COMPENSABLE HOURS OF
 EMPLOYMENT.  E.G., 60 COMP.GEN. 681(1981);  59 COMP.GEN. 95(1979);  FPM
 SUPP. 990-2, BOOK 550, SUBCHAPTER S1-3.  THE ONLY APPARENT PURPOSE OF
 THE GRIEVANT'S WEDNESDAY EVENING TRAVEL WAS TO IMMEDIATELY RETURN TO HIS
 DUTY STATION, AND IT IS WELL ESTABLISHED THAT AN EMPLOYEE'S MERE
 PRESENCE AT THE EMPLOYEE'S DUTY STATION ON THE NEXT DAY IS NOT NORMALLY
 CONSIDERED AN ADMINISTRATIVELY UNCONTROLLABLE EVENT SO AS TO MAKE TRAVEL
 TIME OUTSIDE OF REGULAR DUTY HOURS COMPENSABLE HOURS OF EMPLOYMENT.  60
 COMP.GEN. AT 684;  59 COMP.GEN. AT 98-99.  CONSEQUENTLY, WITH NO PROPER
 FINDING, AND WITH IT NOT OTHERWISE APPARENT, THAT THE GRIEVANT'S RETURN
 TRIP ITSELF MEETS THE REQUIREMENTS OF SECTION 5542(B)(2), SUCH TRAVEL
 TIME CANNOT CONSTITUTE COMPENSABLE HOURS OF EMPLOYMENT.
 
    THEREFORE, IN VIEW OF THE ABOVE, THE ARBITRATOR'S AWARD OF 4 3/4
 HOURS OF OVERTIME COMPENSATION IS DEFICIENT IN ITS ENTIRETY AS CONTRARY
 TO 5 U.S.C. 5542(B)(2), AND ACCORDINGLY THE AWARD IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 18, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 5542(B)(2) ALONE GOVERNS THIS CASE BECAUSE IT IS APPARENT
 FROM THE UNCHALLENGED RECORD BEFORE THE AUTHORITY THAT THE GRIEVANT IS
 AN EMPLOYEE EXEMPT FROM COVERAGE UNDER THE FAIR LABOR STANDARDS ACT.