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56 FLRA No. 16
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 236
GENERAL SERVICES ADMINISTRATION
REGION 9, AUBURN, WASHINGTON
March 14, 2000
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.
Decision by Member Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Dennis L. Ekberg filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition.
For the reasons that follow, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union grieved the failure of the Agency to pay employees overtime for hours they spent traveling Saturday and Sunday to attend training conferences that were conducted during their normal work week. The grievance was unresolved and submitted to arbitration, where the issue was framed by the Arbitrator as:
Did the Employer violate Article 27, Section 1, of the National Agreement when it did not provide overtime compensation to [employees] for weekend travel to/from [training conferences]?
Award at 5. [n1]
The Arbitrator denied the grievance, finding that the Agency was not required to pay employees for the travel. The Arbitrator found that under Article 27, Section 1 of the parties' agreement, the Agency is not required to compensate employees for "administratively controllable" travel. The Arbitrator determined that the travel at issue was administratively controllable because the Agency was a part of the overall management of the training program, and the decision to hold the training Monday through Friday "was a management decision[, which was] the responsibility of the Agency." Award at 11.
The Arbitrator considered section 5542(b)(2) of title 5, the Federal Employees Pay Act (FEPA), which provides the four conditions under which employees can be compensated for travel. See 5 U.S.C. § 5542(b)(2). [n2] The Arbitrator found that there was no evidence that any of the conditions set forth in section 5542(b)(2) were met, and more specifically, that the travel at issue was administratively controllable under section 5542(b)(2)(B)(iv) and was not in response to an "emergency" that would fit within the exception. Award at 12. The Arbitrator also considered Article 27, Section 1 of the parties' agreement. The Arbitrator found that "[t]o read the contract as requiring pay for travel would be granting the [U]nion something which had not been gained through negotiation of the contract[.]" Id. at 13. The Arbitrator explained that if the parties intended the Agency to pay for all travel, then that intent should have been set forth as part of the express agreement language. The Arbitrator found that the agreement on its face did not permit pay for administratively controllable travel and, as no bargaining history or other intent of the parties was presented, he concluded that there was no basis in the agreement for compensating the employees for their travel. [ v56 p137 ]
III. Positions of the Parties
A. Union's Exceptions
The Union asserts that the Arbitrator based the award on a "misapplication of the law." Exceptions at 1. Specifically, the Union claims that the Arbitrator erred in finding that because the travel was not in response to an emergency, it was administratively controllable.
The Union also argues that the Arbitrator's statement that "`[t]o read the contract as requiring pay for travel would be granting the Union something which had not been gained through negotiation of the contract,'" is "so unfounded in reason and fact, and so unconnected to the wording and the purpose" of the parties' agreement that the award fails to draw its essence from the agreement. Id. at 2.
B. Agency's Opposition [n3]
The Agency asserts that a document, the Student Information Bulletin (Bulletin), included with the Union's exceptions is neither new nor material to this case, and should not be considered by the Authority. The Agency also asserts that the Union has failed to establish that the award is contrary to law, or that it fails to draw its essence from the parties' agreement.
IV. Analysis and Conclusions
A. Preliminary Issue
The Agency asserts that the Bulletin should not be considered by the Authority. It is not disputed that the Bulletin was in existence at the time of the arbitration hearing, but was not presented to the Arbitrator. As such, consideration of the Bulletin is precluded under section 2429.5 of the Authority's Regulations. [n4] See American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 53 FLRA 1353, 1357 n.* (1998). Accordingly, we do not consider the Bulletin in resolving the Union's exceptions.
B. The Award Is Not Inconsistent with 5 U.S.C. § 5542(b)(2)(B)(iv).
Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised in a party's exceptions and the arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). 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. See 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.
The general rule regarding overtime pay under the FEPA is that time outside normal duty hours spent in travel status does not constitute hours of work. See 5 U.S.C. § 5542(b)(2). As one exception, FEPA provides that travel time constitutes hours of work for overtime purposes if the travel "results from an event which could not be scheduled or controlled administratively[.]" 5 U.S.C. § 5542(b)(2)(B)(iv). [n5] Under that subsection, compensation for overtime is authorized only where two requirements are met: (1) the travel must result from an event that could not be scheduled or controlled administratively; and (2) there must be an immediate official necessity concerning the event that requires travel outside the employee's regular duty hours.
In construing subsection 5542(b)(2)(B)(iv), the Authority relies on Comptroller General and court interpretations of the statute. See U.S. Department of the Navy, Naval Underseas Warfare Center, Newport, Rhode Island and National Association of Government Employees, Federal Union of Scientists and Engineers, 54 FLRA 1495, 1499-500 (1998) (Department of the Navy) (citing Barth v. United States, 568 F.2d 1329, 1332 (Ct. Cl. 1978) (Barth)). With respect to the first requirement, the Court of Claims and the Comptroller General define an event that could not be scheduled or controlled administratively as one where there is "a total [ v56 p138 ] lack of Government control[.]" Barth, 568 F.2d at 1332; Defense Security Institute Instructors, 71 Comp. Gen. 228, 230 (1992). As such, if an agency "shares" control over an event with another party and exercises its control "indirectly," then travel required by that event will not meet the "narrowly drawn statutory exception[.]" Barth, 568 F.2d at 1332. See also National Treasury Employees Union, and NTEU Chapter 208 and Nuclear Regulatory Commission, 13 FLRA 60, 62-63 (1983).
In this case, the Arbitrator made specific factual findings on which he based his legal conclusion that the training conferences were controlled administratively by the Agency. In particular, the Arbitrator found that: (1) the Agency was a part of the overall management of the training program; (2) the decision to hold the training Monday through Friday "was a management decision"; and (3) that decision was "the responsibility of the Agency." Award at 11. These factual findings, to which we defer, support the Arbitrator's legal conclusion that the grievants' travel resulted from events that were administratively controllable by the Agency. [n6] See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993).
According to the Union, the Arbitrator erred when he "ruled that the matter was 'administratively controllable' since travel was not in response to an emergency." Exceptions at 2. However, even if the Arbitrator described the situations that would not be "administratively controllable" too narrowly, this does not affect the Arbitrator's specific finding, to which we defer, that the disputed travel in this case was administratively controllable. Accordingly, the Union's assertion does not provide a basis for finding the award deficient.
Based on the foregoing, we conclude that the award is not contrary to 5 U.S.C. § 5542(b)(2)(B)(iv).
C. The Award Draws its Essence from the Parties' Agreement.
In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See U.S. Department of Defense, Dependents Schools and Overseas Education Association, 53 FLRA 196, 208 (1997), citing United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).
Article 27, Section 1 of the parties' agreement states, in part, that "[t]ravel required by events that cannot be scheduled or controlled administratively shall be hours of employment for pay purposes." See supra note 1. While the agreement expressly provides that employees will receive pay for such travel, the agreement does not provide a similar pay requirement with regard to travel that can be scheduled or controlled administratively. The Arbitrator found that the agreement does not require compensation for administratively controllable travel. The Union has not demonstrated that the Arbitrator's interpretation and application of Article 27, Section 1 is unfounded, implausible, or irrational. Accordingly, we conclude that the award does not fail to draw its essence from the parties' agreement.
The Union's exceptions are denied.
Footnote # 1 for 56 FLRA No. 16
Management shall, to the maximum extent practicable, schedule administratively controllable travel to occur within each employee's standard daily and weekly working hours. Travel required by events that cannot be scheduled or controlled administratively shall be hours of employment for pay purposes.
Footnote # 2 for 56 FLRA No. 16
[T]ime spent in a travel status away from the official-duty station of an employee is not hours of employment unless . . .
(B) the travel (i) involves the performance of work while traveling, (ii) is incidental 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, including travel by an employee to such an event and the return of such employee from such event to his or her official-duty station.
Footnote # 3 for 56 FLRA No. 16
In its Opposition, the Agency asserts that the filing party did not have standing to file an exception to the award. The Agency subsequently withdrew that assertion, and accordingly, we do not address it. See Agency Supplemental Submission, dated September 29, 1999.
Footnote # 4 for 56 FLRA No. 16
The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . arbitrator.
Footnote # 5 for 56 FLRA No. 16
FEPA provides three additional exceptions to the general rule regarding overtime pay for travel. See n.2, supra. As those exceptions are not claimed to apply in this case, we do not address them further.
Footnote # 6 for 56 FLRA No. 16