47:0786(73)AR - - Air Force, OK City Air Logistics Command, Tinker AFB, OK and AFGE Local 916 - - 1993 FLRAdec AR - - v47 p786
[ v47 p786 ]
The decision of the Authority follows:
47 FLRA No. 73
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS COMMAND
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
June 2, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Norman Bennett 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 did not file an opposition to the Agency's exception.
The Arbitrator sustained a grievance alleging that the grievant was entitled to overtime compensation for certain time spent traveling. For the following reasons, we are unable to determine whether the award is deficient. Accordingly, we will remand the award to the parties for resubmission to the Arbitrator.
II. Background and Arbitrator's Award
The grievant, a WG-10 mechanic assigned to Tinker Air Force Base, was directed to travel to Anderson Air Force Base in Guam to repair an aircraft. The grievant departed for Guam on a Sunday, and arrived there the following Wednesday. After completing the repairs, the grievant left Guam on a Tuesday, and arrived home early Wednesday morning. The Agency paid the grievant for 3 and 1/2 hours of overtime for his travel time on Sunday during those hours which corresponded to the grievant's normal work hours, in accordance with 5 C.F.R. 551.422.(1) The grievant was not paid overtime for any other travel time associated with the trip. The grievant filed a grievance alleging that he was entitled to an additional 35 and 3/4 hours of overtime in connection with the trip. When the grievance was not resolved, it was submitted to arbitration on the following issue, as stated by the Arbitrator:
[W]hether [the grievant] was entitled to overtime pay for travel time during a trip to . . . Guam. If so, what shall be the remedy[?]
Award at 1.
The Arbitrator applied 5 U.S.C. § 5542, to resolve the grievance.(2) 5 U.S.C. § 5542 provides, among other things, that for employees paid under the General Schedule (GS), time spent traveling outside an employee's official duty station is not work time, for purposes of determining entitlement to overtime compensation, unless the event necessitating the travel could not be scheduled or controlled administratively.
The Arbitrator noted the testimony of the grievant's second-level supervisor that, although the supervisor did not have control over the relevant flight schedules, he did have control over the flights which the grievant selected. Therefore, the supervisor testified, it was his belief that the Agency had administrative control over the grievant's travel. After reviewing the testimony of the witness and guidance material offered by the Agency, however, the Arbitrator determined that, "[t]he event necessitating the travel in this case was an aircraft needing repairs[,]" and, as such, the event could not be scheduled or controlled administratively. Award at 3. Consequently, the Arbitrator found that the grievant was entitled to receive overtime compensation for travel during his nonwork hours. As his award, the Arbitrator directed the Agency to pay the grievant overtime in accordance with his findings.
III. Positions of the Parties
The Agency argues that the award is contrary to 5 U.S.C.§ 5542. In this regard, the Agency contends that, contrary to the Arbitrator's determination, the event necessitating the grievant's travel was the scheduling of the repair to the aircraft, and not the aircraft breakdown. In this connection, the Agency asserts that the scheduling of the repair was within its "full administrative control[,]" because the Agency was fully aware of, and approved, the grievant's travel schedule. Exception at 5. In support of its arguments, the Agency relies on the Comptroller General's decisions in Charles A. Bowsher, 49 Comp. Gen. 209 (1969) (Bowsher) and Department of Housing and Urban Development, 70 Comp. Gen. 77 (1990).
The Union did not file an opposition to the Agency's exception.
IV. Analysis and Conclusions
The grievant in this case is a WG employee. See Award at 1. WG employees are excluded from coverage of 5 U.S.C. § 5542 by 5 U.S.C. § 5541.(3) Accordingly, 5 U.S.C. § 5542, relied on by the Agency and the Arbitrator, does not apply. Instead, 5 U.S.C. § 5544 expressly applies to WG employees and addresses their entitlement to overtime compensation for time spent in a travel status.(4)
Sections 5542 and 5544 are worded similarly. Moreover, as interpreted by the Comptroller General, both sections require that two conditions must be satisfied before travel during nonwork hours will qualify as hours of work for purposes of entitlement to overtime compensation. See, for example, Benjamin Brown and John R. Schacht, 69 Comp. Gen. 385, 386 (1990) (Schacht). See also Comp. Gen. No. B-227489, (November 30,1987) (unpublished). First, the event requiring off-duty travel must be administratively uncontrollable.(5) Second, there must be an immediate official necessity, occasioned by the administratively uncontrollable event, for the travel.(6) Schact, 69 Comp. Gen. at 386.
The two sections differ in one respect, however. In this regard, 5 U.S.C. § 5542 expressly includes return travel to an official duty station as hours of work when the initial travel results from an administratively uncontrollable event. See, for example, Dr. L. Friedman, 65