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60 FLRA No. 94
SOCIAL SECURITY ADMINISTRATION
OF GOVERNMENT EMPLOYEES
December 13, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John R. Baker filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator found that the grievant, a Union official who was participating in a grievance hearing in Pueblo, Colorado, on behalf of the Union, was entitled to additional per diem and compensation when she returned to her work location in Boston several calendar days after the date on her travel authorization.
For the reasons that follow, we set aside the portion of the award directing the Agency to provide the grievant such additional per diem and compensation.
II. Background and Arbitrator's Award
The grievant, a Union officer, was authorized by the Agency to travel from Boston, Massachusetts to Pueblo, Colorado to act as a technical advisor for the Union and testify as a witness on behalf of the Union at a grievance hearing scheduled from Wednesday, February 12, 2003, to Friday, February 14, 2003.
Initially, the grievant was told by the Agency that if the hearing lasted too late for her to return on Friday, the travel order would be amended to authorize travel on Saturday, February 15. Shortly thereafter, the grievant received an e-mail changing the travel authorization return date to Tuesday, February 18 (Monday, February 17 was a Federal holiday). As a result, the grievant made arrangements to travel back to Boston on February 18.
On February 10, the grievant received an e-mail from the Agency advising her that her last return day of travel authorization was changed from Tuesday, February 18 to Saturday, February 15. Having already made her travel arrangements, the grievant kept her plan to return on Tuesday, February 18. A snowstorm prevented travel on that date. The grievant traveled back to Boston on Wednesday, February 19, and returned to the office that day.
The Arbitrator framed the issue as follows:
Is the [g]rievant entitled to compensation for the period between February 12 and February 19, 2003 and if so, in what amount?
Award at 4.
The Arbitrator determined that Article 8, Section 1(C) of the parties' collective bargaining agreement allows an employee to travel on the workday before or after an event when the event would be outside regular duty hours.
Article 8, Section 1(C) states:
To the maximum extent practicable, time spent in travel status away from an employee's official duty station will be scheduled by the Agency within normal working hours of the traveling employee(s). To this end, the Agency agrees to:
1. whenever possible, schedule events to allow employees to travel during normal duty hours;
2. allow an employee to travel on workdays preceding and after an event when travel on the day of an event would be outside the traveling employee's regular duty hours.
Id. at 2.
The Arbitrator found that "[t]he [g]rievance hearing did not conclude until late Friday afternoon and the [g]rievant and [the Union representative conducting the hearing] completed preparing photocopies to send to the Arbitrator at 6:00pm, clearly outside normal duty hours." Id. at 6. Further, the Arbitrator found that the grievant was unable to travel on Tuesday, February 18 because of a winter storm. As such, the Arbitrator found that "[t]he [g]rievant is entitled to per diem for [ v60 p477 ] Saturday, Sunday and Monday, February 15, 16, 17, 2003 and should be paid [eight] hours for the travel time on Tuesday, February 18, 2003 as a continuation of travel authorization due to circumstances beyond her control." Id. at 6. In addition, the Arbitrator found that the grievant was entitled to reimbursement for three-quarters per diem for Wednesday, February 19, "other allowable expenses for the days set forth above[,]" and "straight time pay for the period between 5:30 pm and 6:00 pm on February 14, 2003." Id. at 7.
III. Positions of the Parties
A. Agency's Exceptions
The Agency argues that the award is contrary to management's rights to direct employees and assign work under section 7106(a)(2) of the Statute. Noting the analytical framework set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, 53 FLRA 146 (1997) ("BEP"), the Agency argues that by requiring it to allow an employee to travel on workdays before or after an event without exception, the Arbitrator's interpretation and application of Article 8, Section 1(C) "does not allow the Agency to assign particular duties while the employee is traveling." Exceptions at 6.
As to prong I of BEP, the Agency asserts that Article 8, Section 1(C) was "not intended to ameliorate the adverse effects of management's right to assign overtime, but explicitly dictates to management when an employee will travel to and from his/her home [or] office and when management may assign work to the employee." Id. at 7. Further, the Agency asserts that the provision excessively interferes with management's right to assign work by "prohibiting the Agency from requiring an employee to travel on any non-workday[.]" Id. at 8.
The Agency also argues that after 6:00 pm on Friday, February 14, the time the grievant spent away from her duty station did not constitute hours of work under 5 U.S.C. § 5542(b)(2).
Finally, the Agency claims that under 5 U.S.C. § 5702(a)(1), the grievant is not entitled to per diem, because she was not traveling on official business.
The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
In resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority applies the framework established in BEP. Upon finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test to determine if the award is deficient. Under prong I, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue. United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Lompoc, Cal., 58 FLRA 301, 302-03 (2003) (Chairman Cabaniss concurring, Member Pope dissenting) (BOP Lompoc).
The rights to assign work and direct employees under § 7106(a)(2)(B) of the Statute encompass the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, e.g., AFGE Local 3529, 56 FLRA 1049, 1050 (2001). Under the Arbitrator's interpretation and application of Article 8, Section 1(C), the Agency is required to permit an employee to travel on workdays before or after an event, without any exceptions. The Authority has held that proposals which require travel during a scheduled workweek even when such travel is not practicable are inconsistent with 5 U.S.C. § 6101(b)(2). [n1] See AFGE, AFL-CIO, Local 3804, 21 FLRA 870, 877-79 (1986). Similarly, a requirement that an agency must schedule travel only during duty hours clearly affects the agency's rights to direct employees and assign work under § 7106(a)(2)(B).
The Authority has held that a proposal requiring that an employee's travel be scheduled only on duty hours affects management's right to assign work, because it prevents management from requiring an [ v60 p478 ] employee to work a full day and to travel on non-duty time. See Dep't of the Navy, Supervisor of Shipbuilding Conversion and Repair, Boston, Mass., 33 FLRA 187, 189 (1988) (Dep't of the Navy). The Arbitrator's interpretation of Article 8, Section 1(C) in this case, having the identical effect as the provision in Dep't of the Navy, requires, without limitation, that "an employee will be allowed to travel on the day prior and the day after an event . . . when travel on the day of the event would be outside the employee's regular duty hours." Award at 6. Dep't of the Navy supports the conclusion that the Arbitrator's interpretation of the similar provision here effectively prohibits the Agency from requiring an employee to work a full day and to travel on non-duty time, and as a result, affects management's right to assign work. There is no contention that the provision was negotiated pursuant to § 7106(b). Therefore, as interpreted and applied by the Arbitrator, Article 8, Section 1(C) is inconsistent with management's right to assign work.
As the grievant was properly authorized to travel on Saturday, February 15, she is entitled to the 3/4 per diem she would have received for her return that day. Accordingly, we find that the portion of the award directing the Agency to provide the grievant per diem and pay for Sunday, February 16 through Tuesday, February 18 is inconsistent with management's right to assign work under § 7106(a)(2)(B) of the Statute, and set it aside. [n2]
The portion of the award directing the Agency to provide the grievant per diem and pay for Sunday, February 16 through Tuesday, February 18 award is set aside.
Footnote # 1 for 60 FLRA No. 94 - Authority's Decision
5 U.S.C. § 6101(b)(2) states that "[t]o the maximum extent practicable, the head of an agency shall schedule the time to be spent by an employee in a travel status away from his . . . scheduled workweek of the employee." This language is similar to that of the initial part of Article 8, Section 1(C).
Footnote # 2 for 60 FLRA No. 94 - Authority's Decision