[ v61 p57 ]
61 FLRA No. 9
DEPARTMENT OF THE NAVY
COASTAL SYSTEMS STATION
NAVAL SURFACE WARFARE CENTER
PANAMA CITY, FLORIDA
OF GOVERNMENT EMPLOYEES
June 17, 2005
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 Robert G. Williams filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator ruled that certain travel time of the grievant was compensable. We conclude that the award is deficient, and we set it aside.
II. Background and Arbitrator's Award
This case involves work on versatile exercise mines (vems) located in Okinawa, Japan, and Catania, Italy. In both locations, the vems units experienced unplanned maintenance problems. Local service staff was unable to perform the necessary repairs. Consequently, the grievant was instructed to proceed to these locations to perform troubleshooting and to make necessary repairs. [ v61 p58 ]
On January 9, 2003, the grievant departed from his official duty station (Panama, Florida) and arrived in Okinawa on January 11. The total travel time for this trip was 36 hours. The grievant was paid for 16 hours for the travel time during his regularly scheduled workweek. The grievant returned to his official duty station from Okinawa on January 30. The total travel time for the return trip was 26 hours. He was paid for 8 hours for the travel time during his regularly scheduled workweek.
On February 9, 2003, the grievant traveled to Italy to perform troubleshooting and to make necessary repairs of the vems units. All of the grievant's travel time to Italy was paid except for 7.5 hours that did not correspond to the grievant's regularly scheduled workweek. The grievant returned to his official duty station from Italy on February 28. The total travel time of the return trip was 22 hours. He was paid for 8 hours for the travel time during his regularly scheduled workweek.
The grievant filed a grievance claiming, as relevant here, that he was entitled to be compensated for all of his travel time. The grievance was not resolved and was submitted to arbitration.
The Arbitrator stated the issue as whether "the [g]rievant [was] entitled to . . . compensation for his travel time from Panama, [Florida,] to VEMS repair locations and return and, if so, what shall be the remedy?" Award at 2. He noted that the resolution of this grievance was controlled by 5 U.S.C. § 5542(b)(2)(B)(iv). [n1] According to the Arbitrator, the test was "whether an administrator has the authority to `control or schedule' an event." Id. at 18.
The Arbitrator determined that the relevant event for purposes of § 5542(b)(2)(B)(iv) was the breakdown of the vems units and not the repair of these units. He found that the Agency had no control over the timing of the breakdowns. Consequently, he ruled that the Agency could not administratively control or schedule the events and that all of the grievant's travel time was compensable. Accordingly, he awarded the grievant compensation for 59½ hours at overtime rates.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is contrary to law and Government-wide regulation. Citing Authority and Comptroller General precedent, the Agency argues that the grievant's travel did not satisfy § 5542(b)(2)(B)(iv) because the travel was controlled administratively. The Agency maintains that there is no evidence that the grievant was required to be at either location on a specific date or time. The Agency further maintains that the grievant traveled to and from each destination at his own discretion and made his own travel arrangements. Consequently, the Agency asserts that there was no immediate official necessity for the grievant's travel outside his regular duty hours.
B. Union's Opposition
The Union contends that the award fully satisfies § 5542(b)(2)(B)(iv) because the event could not be scheduled or controlled administratively and, as evidenced by the Agency's ordering or approving the grievant's travel, the travel was an immediate official necessity.
IV. Analysis and Conclusions
The Authority reviews questions of law raised in exceptions de novo. See, e.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). 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 NFFE Local 1437, 53 FLRA 1703, 1710 (1998).
The general rule under the Federal Employees Pay Act is that time spent traveling outside regular duty hours does not constitute compensable hours of work. See AFGE Council 236, 56 FLRA 136, 137 (2000). However, as recognized by the Arbitrator, § 5542(b)(2)(B)(iv) provides an exception to the general rule. Under § 5542(b)(2)(B)(iv), travel time outside of an employee's regular duty hours constitutes compensable hours of work when the travel "results from an event which could not be scheduled or controlled administratively[.]" Accordingly, the Authority will find deficient arbitration awards awarding compensation for travel time when the travel did not result from an event that could not be scheduled or controlled administratively. See, e.g., Health Care Financing Admin., 20 FLRA 583, 584 (1985) (because the grievant's travel was scheduled and controlled by the grievant with the concurrence of the agency, the travel did not result from an event that could not be scheduled or controlled [ v61 p59 ] administratively) (HCFA); see also AFGE Local No. 1815, 7 FLRA 421, 422 (1981) (arbitrator correctly ruled that time traveling to investigate an aircraft accident was not compensable because the agency administratively controlled which team would investigate accidents).
In construing and applying subsection iv, the Authority relies on interpretations of the courts and the Comptroller General. See AFGE Council 236, 56 FLRA at 137. The Comptroller General has repeatedly ruled that even when an employee's travel time is precipitated by an uncontrollable event, the time is not compensable under subsection iv when the timing of the duties to be performed by the employee is within the administrative control of the agency or the employee. See, e.g., B-236,012 (Nov. 8, 1989) (following a train accident in January 1987, the agency conducted an extended rail safety inspection; employees traveled on Sundays from March through July 1987 to report to temporary duty stations on Mondays to inspect rails; travel time was not compensable because the agency controlled the scheduling of the inspections even though the accident that precipitated the inspections was not within the agency's control); Charles A. Bowsher, 49 Comp. Gen. 209, 211 (1969) (travel time of employees outside their regular duty hours to repair gun shields of a ship before it sailed was not compensable because "[t]he time for scheduling of the repair was completely within the administrative control of the [agency]").
In addition, the Authority has found awards deficient when travel time compensation was based on an agency's failure to make the maximum practicable effort to schedule travel to occur during regular duty hours. See HCFA; United States Dep't of Justice, Fed. Corr. Inst., Danbury, Conn., 16 FLRA 811 (1984). Similarly, the Comptroller General has rejected claims that travel outside of regular duty hours should be compensable because employees were ordered to travel when they did and were not offered the option to travel during their regular duty hours. See, e.g., B-198,771 (Dec. 10, 1980). The Comptroller General emphasized that to be compensable, travel must meet one of the exceptions of § 5542(b)(2). Although the Comptroller General acknowledged the policy of 5 U.S.C. § 6101(b)(2), [n2] the Comptroller General noted that § 6101(b)(2) is not authority for payment of compensation. "In other words the Congress has not provided compensation as a remedy where the circumstances of an employee's travel do not fall within the purview of 5 U.S.C. § 5542(b)(2) and where an agency fails to adhere to the policy of trying to schedule travel during regular duty hours when practicable, enunciated in 5 U.S.C. § 6101(b)(2)." See id.
Applying this precedent here, we conclude that the award of compensation is contrary to § 5542(b)(2)(B)(iv). The Arbitrator erred by finding that the relevant event for purposes of subsection iv was the breakdown of the vems units. The relevant event for purposes of subsection iv was the repair of the vems units. The timing of the repair of the units was subject to administrative control and scheduling, even though the breakdown that precipitated the grievant's travel was not controllable. Consequently, the grievant's travel time outside his regular duty hours did not result from events that could not be scheduled or controlled administratively within the meaning of § 5542(b)(2)(B)(iv), and the award finding otherwise is deficient. [n3] See HCFA.
The Union's argument that the travel time is compensable because the grievant traveled when ordered to travel by the Agency provides no basis for supporting the award. Even if the Agency failed to meet the policy of § 6101(b)(2) in ordering the grievant to travel outside his regular duty time, no basis is available for compensating that travel time. See Barth v. United States, 568 F.2d 1329, 1332-33 (Ct. of Claims 1978); B-198,771.
The award is set aside. [n4]
Footnote # 1 for 61 FLRA No. 9 - Authority's Decision
(2) time spent in a travel status away from the official-duty station of an employee is not hours of employment unless--
(B) the travel . . . (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 # 2 for 61 FLRA No. 9 - Authority's Decision
Section 6101(b)(2) provides: "To 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 official duty station within the regularly scheduled workweek of the employee."
Footnote # 3 for 61 FLRA No. 9 - Authority's Decision
Under § 5542(b)(2)(B)(iv), return travel is compensable if outbound travel was compensable. Because the grievant's outbound travel to repair the vems units was not compensable, the grievant's return travel must independently satisfy § 5542(b)(2)(B)(iv) to be compensable. See Dep't of Housing and Urban Dev., 70 Comp. Gen. 77, 80 (1990). Because the return travel did not result from events that could not be scheduled or controlled administratively, it clearly does not. See Daniel L. Hubbel, 68 Comp. Gen. 29, 32 (1988). Accordingly, the Arbitrator's award of compensation for the grievant's return travel is likewise deficient.
Footnote # 4 for 61 FLRA No. 9 - Authority's Decision
We note that effective January 28, 2005, the Federal Workforce Flexibility Act, 118 Stat. 2313, added 5 U.S.C. § 5550b, entitled "Compensatory time off for travel," which provides: "Notwithstanding § 5542(b)(2), each hour spent by an employee in travel status away from the official duty station of the employee, that is not otherwise compensable, shall be treated as an hour of work or employment for purposes of calculating compensatory time off." Nothing in the legislation indicates that this provision was intended to apply to travel that occurred during the time periods involved in this case.