19:0319(44)AR - INS and AFGE Local 2580 -- 1985 FLRAdec AR
[ v19 p319 ]
The decision of the Authority follows:
19 FLRA No. 44 U.S. IMMIGRATION AND NATURALIZATION SERVICE Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2580 Union Case No. O-AR-815 DECISION This matter is before the Authority on an exception to the award of Arbitrator Irving H. Sabghir filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The grievance before the Arbitrator concerned the grievant's claim for overtime compensation. The grievant, an immigration examiner, and another employee were directed to report the next day to a detention facility to assist in the processing of aliens ordered released from the facility by a judge of a U.S. district court. They were instructed to pick up at their duty station a government vehicle and materials needed for processing the aliens and to proceed to the facility. The other employee picked up the vehicle and the materials and then picked up the grievant at his residence at 4:45 a.m. The employees proceeded to the facility, performed their assignment, and returned to their duty station following the completion of the assignment. When his claim for overtime compensation was denied, the grievant filed a grievance that was submitted to arbitration. The Arbitrator acknowledged that the grievant's claim was governed by the provisions of 5 U.S.C. 5542(b)(2)(B) /1/ 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 "(ii) is incident to travel that involves the performance of work while traveling" or "(iv) results from an event which could not be scheduled or controlled administratively." The Arbitrator held that the grievant was entitled to overtime compensation for the trip to the detention facility under 5 U.S.C. 5542(b)(2)(B)(ii) and (iv). The Arbitrator ruled that the travel to the facility was compensable as travel that was incident to travel that involved the performance of work while traveling because the grievant transported materials essential to the operation. The Arbitrator reasoned that the grievant acted in the nature of a courier and that it would be unfair to deny the grievant compensation merely because the "prime reason for traveling was to perform work at the temporary station and not transport needed materials." The Arbitrator further ruled that the travel was compensable as travel that resulted from an event which could not be scheduled or controlled administratively. The Arbitrator reasoned that although the central office of the Agency had administrative control of how to accomplish the processing mandated by the court order and had scheduled the grievant's assignment, the local office and managers of the Agency had no administrative control over the assignment and the scheduling had been imposed on them. Accordingly, as his award, the Arbitrator determined that the grievant was entitled to 3 1/4 hours of overtime at the appropriate rate of pay. In its exception the Agency contends that the award is deficient as contrary to 5 U.S.C. 5542(b)(2) and implementing regulations. The Authority agrees. The Authority concludes that the award is deficient as contrary to law. Specifically, the award is deficient by finding that the grievant's travel time constituted compensable hours of employment under 5 U.S.C. 5542(b)(2)(B)(ii) and (iv) and by directing that the grievant be compensated accordingly. As recognized by the Arbitrator, for travel time to be compensable under section 5542(b)(2)(B)(ii), the travel must be incident to travel that involves the performance of work while traveling. The Office of Personnel Management (OPM) pursuant to its responsibility under 5 U.S.C. 5548(a) has issued regulations and guidance governing the administration of overtime. In FPM Supplement 990-2, book 550, subchapter S1, OPM has advised that this situation generally involves a "deadhead" trip, that is, either traveling to a destination to board a means of transportation upon which the employee will be performing work while traveling which work can only be performed while traveling or traveling back to the employee's official duty station after having performed work while traveling. Moreover, it has been consistently recognized that in most instances of travel, a government employee will necessarily transport supplies or equipment, and it has been consistently held that the transportation of supplies or equipment incident to the purpose of travel does not change the character of that travel. E.g., Decision of the Comptroller General, B-178458, June 22, 1973; accord 61 Comp.Gen. 626 (1982). In this respect, as noted, the Arbitrator expressly identified the character of the travel as "prim(arily) . . . to perform work at the temporary station." Accordingly, under the statutory and regulatory provisions, the award finding the grievant's travel time compensable under section 5542(b)(2)(B)(ii) is deficient. As also recognized by the Arbitrator, for travel time to be compensable under section 5542(b)(2)(B)(iv), the travel must result from an event which could not be scheduled or controlled administratively. However, as expressly determined by the Arbitrator, the central office of the Agency both scheduled and administratively controlled the assignment. Thus, for the purposes of section 5542(b)(2)(B)(iv), the grievant's travel did not result from an event which could not be scheduled or controlled administratively. See Barth v. U.S., 568 F.2d 1329, 1331-33 (Ct. Cl. 1978); United States Department of Labor and National Council of Field Labor Locals, American Federation of Government Employees, 10 FLRA 491 (1982); see also U.S. Department of Justice, Federal Correctional Institution, Danbury, Connecticut and American Federation of Government Employees, Council of Prison Locals, Local 1661, 16 FLRA No. 112 (1984); Air Force Logistics Command, Wright-Patterson Air Force Base and American Federation of Government Employees, Local 1138, 15 FLRA No. 95 (1985). Consequently, the award finding such travel compensable on this basis is deficient. In view of the above, the Arbitrator's award of 3 1/4 hours of overtime compensation is deficient as contrary to 5 U.S.C. 5542(b)(2), and the award is accordingly set aside. Issued, Washington, D.C., July 26, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 5542(b)(2) alone governs this case because it is not contested that the grievant is an employee exempt from coverage under the Fair Labor Standards Act.