[ v55 p487 ]
55 FLRA No. 82
U.S. DEPARTMENT OF THE NAVY
NAVY PUBLIC WORKS CENTER
PEARL HARBOR, HAWAII
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
HAWAII FEDERAL LODGE 1998
May 28, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Cabaniss for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Paul P. Tinning 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 Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance over the Agency's failure to compensate employees [n1] due to a change in their work schedules at the Ford Island job site, resulting in the employees not being compensated for time spent on a ferry ride to the job site.
For the following reasons, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievants are wharfbuilders. In January 1994, a supervisor directed the employees to take the 0630 ferry for departure to Ford Island. In a November 2, 1994 memorandum, the maintenance foreman informed the wharfbuilders at Ford Island that their work schedule was as follows:
0630 Ride ferry to Ford Island
1500 Ride ferry back to [ ] landing
Award at 9, 12. The employees claimed that such a schedule was an "exception" to the normal practice of reporting to the compound and then being transported to the job site after the starting time and subsequently being transported back to the compound before quitting time. [n2] According to a management official, the underlying reason for such job siting is that if employees working at Ford Island reported to the compound at 0700 "we would lose a lot of productive time." Id. at 17. On February 5, 1996, the Agency implemented a 0645-1515 alternative work schedule for these employees.
A management memorandum, "_Ford Island Work Schedule/Job Site Policy'" issued on January 21, 1997, reconfirmed the 0645-1515 work schedule and provided in part:
c. Departing to Ford Island-It is each employee's responsibility to secure transportation in order to meet their start time at Ford Island as the job site. While there may be other methods available for your use, the most commonly and conveniently available service is the Ford Island Ferry. Should you choose this method, there is available, Ferry service departing at 0630 from Halawa Landing (departs every hour on the half hour). All subsequent Ford Island Ferry service departures will not meet the required start time at the job site.
Award at 20-21.
A grievance was filed on behalf of eight grievants on December 20, 1996, alleging that the Agency violated Article VII, Sections 2, 3, and 4 of the parties' collective bargaining agreement by changing the grievants' work schedules at the Ford Island job site. [n3] The grievance requested that the Agency: rescind the November 2, 1994 memorandum; provide backpay for time lost when taking leave; pay daily overtime, retro- [ v55 p488 ] active to January 1994; and return the daily work schedule to 8 hours. [n4] The grievance was not resolved and was submitted to arbitration. The parties stipulated the following issue for arbitration:
Was the grievant entitled to any compensation due to his assigned work schedule(s) on Ford Island beginning in January 1994? If so, what was his compensation entitlement?
Award at 4.
At arbitration, the Agency claimed that the grievance was untimely filed. The Union argued that the timeliness of the grievance was not at issue because it was never raised by the Agency. The Union also contended that the practice being grieved constituted a continuing act and therefore, the grievance was timely.
B. Arbitrator's Award
The Arbitrator found that the Agency had not raised the issue of timeliness during the processing of the grievance and that the Agency was barred from raising such an issue at arbitration.
On the merits of the grievance, the Arbitrator found that the Agency relied on Section 4(a)(1) and (2) of the Portal-To-Portal Pay Act of 1947 (the Act) (29 U.S.C. § 254) whereas the Union relied, in part, on Section 4(b)(1) and (2) of the Act. In essence, Section 4(a) precludes compensation for time spent walking or riding to and from the actual place of performance of work, but under Section 4(b) such activity may be compensable by a custom or practice in effect at the time of such activity. The Arbitrator found that the provisions of Section 4(a)(1) and (2) would have been applicable but for the evidence of a practice. According to the Arbitrator, the record reveals that it was an established practice, dating back to 1975, for employees to report to the compound at the start of their shift and then board vehicles for transport to job sites. Further, according to the Arbitrator, it was the practice for such employees to return to the compound approximately 30 minutes before the end of their shift for cleanup and to store tools and equipment. The Arbitrator determined that the management memorandum directing the employees to be on the 0630 ferry did not change their duty hours, but rather directed the employees to ride the 0630 shuttle to be at their job site by 0700, the start of their shift.
The Arbitrator concluded that the Agency was liable for overtime pay compensation for time spent on the ferry prior to the beginning of the shift. Specifically, he awarded overtime pay for the 30 minutes from 0630 to 0700 when the grievant was required to ride the 0630 ferry when assigned to the Ford Island job site in January 1994 until February 5, 1996, when the grievant started a 0645-1515 alternative work schedule (AWS). The Arbitrator found that the "custom or practice" provisions of Section 4(b) of the Act relative to the 0700-1530 work schedule are equally applicable when the grievant worked the 0645-1515 AWS. The Arbitrator found that the Agency was liable for overtime pay for the 15 minutes from 0630 to 0645 when the grievant began his AWS on February 5, 1996, and thereafter while on the assignment.
III. Preliminary Issue
A. Union's Position
The Union contends that certain arguments or sources cited by the Agency in its exceptions should not be considered because they were not raised before the Arbitrator. The Union asserts that the parties agreed that the arbitration would be limited to an evaluation of the testimony, evidence and arguments presented before the Arbitrator and, therefore, that the Agency's reliance on a Comptroller General decision and 5 U.S.C. § 5544(a) and 37 FLRA 263 should not be considered. The Union contends that the parties' letter to the Arbitrator supports their contention. See Opposition, Attachment U-24.
Under section 2429.5 of the Authority's Regulations the Authority will not consider issues that could have been, but were not, presented to the arbitrator. E.g., American Federation of Government Employees, Local 2207 and U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama, 52 FLRA 1477, 1482 n.3 (1997). The issue of compensation for the time spent by employees riding the ferry to Ford Island is an issue that was argued by the parties to the Arbitrator. Therefore, the Authority may consider the arguments and the supporting precedent regarding that issue submitted by the Agency. Accordingly, we find that the Union's contention that the Authority may not consider certain of the Agency's arguments in support of its exceptions is without merit. [ v55 p489 ]
IV. Positions of the Parties
A. Agency [n5]
The Agency argues that the award is contrary to 5 U.S.C. § 5544(a) which provides that, except for certain enumerated conditions, time spent in a travel status is not hours of work. [n6] The Agency also contends that the Comptroller General has held that an employee's travel between his residence and his official duty station does not constitute compensable travel under section 5544(a), because the employees perform no work during that travel. See Comp. Gen. Decision B-173103, November 16, 1971. The Agency also relies on an Authority decision, National Association of Government Employees and Veterans Administration, Veterans Administration Medical Center, Brockton/West Roxbury, Massachusetts, 37 FLRA 263 (1990) that, according to the Agency, held that proposals that required the payment of overtime to employees who are not performing work is inconsistent with law and regulation.
The Agency also claims that the Arbitrator misapplied 29 U.S.C. § 254(b)(2) (section 4(b)(2) of the Act) "when he applied what he believed was a practice of compensating employees for traveling from work to award employees overtime pay for a period of time before the start of their shift, since the employer never initiated a practice of compensating the grievants for traveling to work." Exceptions at 5 (emphasis in original).
The Agency also contends that the Arbitrator misinterpreted the Act to allow him to award overtime pay at the beginning of a shift, where no such practice was established, based on a "practice" he believed existed during the grievants' scheduled shift. In particular, the Agency asserts that a supervisor permitted employees to depart from Ford Island on duty time because of the inconvenience of being job sited there. However, the Agency argues that this departure on duty time from Ford Island at the end of the work day does not establish a practice of paying employees for their time going to Ford Island at the start of their shift.
The Agency further contends that the award is based on nonfact and the Arbitrator's misunderstanding of the facts. According to the Agency, the Arbitrator stated that "`Prior to January of 1994, the practice for employees job sited to Ford Island was that they reported to the PWC compound at 0700 and were thereafter transported by a worker to the Halawa landing to board the 0730 ferry to Ford Island.'" Exceptions at 3, quoting Award at 31 (emphasis added). The Agency argues that this statement is not factual and makes clear that the Arbitrator completely misunderstood the concept of job siting since his finding is "self-contradictory." Exceptions at 3.The Agency explained that "job-sited" employees never report to or leave from the compound. Rather, they report directly to the job site; "hence the term 'job siting.'" Id.
The Agency maintains that any employee job sited to Ford Island reported directly to Ford Island and never reported to the compound for subsequent transportation on duty time to Ford Island. The Agency asserts that the concept of "job siting" requires that the employee report directly to where the work is to start, that is, the job site, rather than reporting to the compound. The Agency claims that the Arbitrator misunderstood the concept of "job siting" and that had the Arbitrator understood the concept he never would have made his finding.
The Union maintains that the Arbitrator did not misinterpret or misapply the Act, as a compensable practice had been established as defined under the provisions of 29 U.S.C. § 254(b)(2). The Union contends that statements of witnesses attesting to this practice were not challenged by the Agency during the arbitration and that the Arbitrator, in his award, clearly recognized that this practice existed.
The Union asserts that the Arbitrator evaluated the testimony of the several witnesses and statements of other employees proffered by the Union, and correctly concluded that there had been a practice of employees reporting to the compound first before being transported on duty time to Ford Island job sites. The Union contends that this testimony establishes, as the Arbitrator affirmed, that there had been a practice of employees reporting to the compound prior to travel to Ford Island job sites. [ v55 p490 ]
V. Analysis and Conclusions
A. The Award Is Not Based on a Nonfact
To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 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 arbitration. Id. at 594. Moreover, the mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995).
The Arbitrator heard testimony from many employees as well as a manager regarding whether employees with a job site on Ford Island reported to the compound for transport, or whether the employees reported directly to Ford Island. The Arbitrator concluded that there had been a practice for employees to report to the compound before transport to Ford Island on duty time. As the parties clearly disputed this question before the Arbitrator, the Agency's exception does not provide a basis for finding the award deficient. See U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-188, 55 FLRA 163, 165 (1999). Accordingly, we find that the Agency has not established that the award is based on a nonfact and we deny the Agency's exception.
B. The Award Is Not Contrary to Law
The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. [n7]
The Respondent claims that the award is inconsistent with two statutory provisions. First, we will determine whether the award is consistent with 29 U.S.C. § 254(a) and (b), which addresses whether overtime payments to employees who are traveling are required under the Fair Labor Standards Act. Second, we will determine whether the award is consistent with 5 U.S.C. § 5544(a) regarding whether employees may be paid for time spent traveling on Government business away from their duty station.
Upon de novo review, we find that 29 U.S.C. § 254(a) provides that no employer is liable for overtime payment for time employees spend walking, riding, or traveling to and from the actual place of performance of work which the employees are employed to perform. However, section 254(b) sets forth an exception to section 254(a) that provides that an employer shall not be relieved from paying employees if such activity is compensable by a custom or practice in effect at the time of such activity. Contrary to the Agency's contention that it never changed employees' schedules at the start of the day and never paid them to travel to work, but only allowed employees to leave the job site during duty hours at the end of the day, the Arbitrator found otherwise. The Arbitrator, to whose factual findings we defer, found that a practice existed at the activity whereby the employees reported to the compound at the start of their shift for transport to job sites on Ford Island on duty time. The Arbitrator then applied the provisions of the Act to the facts. The Arbitrator concluded that under section 254(b)(2) of the Act, a practice had existed. Accordingly, we find, in agreement with the Arbitrator, that the Agency had deviated from its practice of transporting employees from the compound to the work site while on duty time, by requiring the employees to report to the ferry for transport to Ford Island prior to the start of their duty time. Because the Agency changed its practice by requiring the grievants to report to the ferry for transport to Ford Island before [ v55 p491 ] the start of their duty time, rather than report to the compound for transport on duty time, and because this change was to a custom or practice under section 254(b), the grievants were entitled to be paid for the time they were required to spend riding the ferry prior to the start of their duty hours.
As to the Agency's argument regarding 5 U.S.C. § 5544(a), that provision concerns employees in a travel status away from their official duty station. Here, there is no evidence that the employees were in a travel status because no travel orders were issued to the employees. Likewise, there is no evidence that the employees were away from their official duty station. Rather, the record indicates that the employees have performed official duties at Ford Island since at least 1975. Accordingly, the Agency's reliance on section 5544(a) is misplaced.
We find that the award is not contrary to law and, therefore, we deny the Agency's exception.
We deny the Agency's exceptions.
ARTICLE VII. HOURS OF WORK of the parties' agreement states:
The regular daily shift hours for unit employees shall normally be from 7:00 a.m. to 3:30 p.m. with a 30-minute lunch period near the middle of the shift. Employees assigned to emergency or watch standing work on the second and third shifts will normally not have a scheduled lunch period. Where necessary, the employer may assign shift schedules and/or lunch periods other than the above, consistent with applicable regulations.
Employees who are delayed in reaching or leaving Ford Island at the beginning or end of their work shift, because of a interruption on transportation service, will be carried on a duty status during the period of said interruption.
In effecting any change in the days and/or shift hours of an employee's basic work week, the employer shall give the affected employee notice prior to the start of the administrative workweek in which the change will take effect, except for special circumstances which may be allowed by regulation. The days and/or shift hours of an employee's basic workweek shall not be changed for any period of less than one(1) full week, except where allowed by regulation. [W]hen days and/or shift hours are changed, the employee shall be given as much advance notice as practicable.
Award at 6-7.
Footnote # 1 for 55 FLRA No. 82
Footnote # 2 for 55 FLRA No. 82
Footnote # 3 for 55 FLRA No. 82
Footnote # 4 for 55 FLRA No. 82
The Union contended that the grievants should be compensated 30 minutes from 0630 to 0700, including sick and leave days, under their 0700-1530 work schedule, and that they be compensated for 15 minutes from 0630-0645, including sick and leave days, under their 0645-1515 work schedule.
Footnote # 5 for 55 FLRA No. 82
The Agency's exceptions contain the caption that the award is contrary to law and Government-wide regulation. However, the exceptions contain no citation to any Government -wide regulation. Accordingly, we will only evaluate the exception that the award is contrary to law.
Footnote # 6 for 55 FLRA No. 82
Time spent in a travel status away from the official duty station of an employee subject to this subsection is not hours of work unless the travel (i) involves the performance of work while traveling, (ii) is incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively.
Footnote # 7 for 55 FLRA No. 82
See also U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 367 (1996); U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (discussing Supreme Court's articulation of deferential standard of review of arbitration awards in United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987)).