[ v10 p491 ]
10:0491(82)AR
The decision of the Authority follows:
10 FLRA No. 82
UNITED STATES
DEPARTMENT OF LABOR
Agency
and
NATIONAL COUNCIL OF FIELD
LABOR LOCALS, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES
Union
Case No. O-AR-187
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR THOMAS M. COOLEY II 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 FILED
AN OPPOSITION.
THE DISPUTE IN THIS MATTER CONCERNS THE GRIEVANT'S CLAIM FOR OVERTIME
COMPENSATION. THE GRIEVANT WAS REQUIRED TO TRAVEL TO PHILADELPHIA FROM
HIS DUTY STATION OF PITTSBURGH TO ATTEND A TWO-DAY CONFERENCE. PURSUANT
TO TRAVEL ARRANGEMENTS MADE FOR HIM, HE TRAVELED TO PHILADELPHIA ON
TUESDAY MORNING MAY 13, 1980, FOR THE CONFERENCE ON TUESDAY AND
WEDNESDAY, AND HE RETURNED TO PITTSBURGH ON WEDNESDAY EVENING AFTER THE
CONFERENCE WAS COMPLETED. THE GRIEVANT SUBMITTED A CLAIM FOR OVERTIME
COMPENSATION FOR 4 3/4 HOURS SPENT IN TRAVEL TO AND FROM PHILADELPHIA
THAT WAS IN ADDITION TO HIS NORMAL EIGHT HOURS OF DUTY ON BOTH TUESDAY
AND WEDNESDAY. HIS CLAIM WAS DENIED AND HE FILED A GRIEVANCE PROTESTING
THE DENIAL THAT WAS ULTIMATELY SUBMITTED TO ARBITRATION.
THE ARBITRATOR ACKNOWLEDGED THAT THE GRIEVANT'S CLAIM WAS GOVERNED BY
THE PROVISION OF 5 U.S.C. 5542 PROVIDING THAT TIME SPENT IN A TRAVEL
STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE IS NOT HOURS
OF EMPLOYMENT UNLESS THE TRAVEL "RESULTS FROM AN EVENT WHICH COULD NOT
BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY." 5 U.S.C.
5542(B)(2)(B)(IV)(1976). WITH RESPECT TO THE GRIEVANT'S TRAVEL TO
PHILADELPHIA, THE ARBITRATOR QUESTIONED WHETHER THE CONFERENCE WAS AN
EVENT WHICH COULD BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY BY THE
AGENCY. THE ARBITRATOR FIRST RECOGNIZED THAT THE AGENCY "COULD, OF
COURSE, INFLUENCE THE SCHEDULING." IN ADDITION, HE NOTED THAT THE
CONFERENCE WAS IN FACT SCHEDULED ON TUESDAY BY REQUEST OF THE AGENCY.
HOWEVER, HE ALSO OBSERVED THAT THE OTHER PARTY TO THE CONFERENCE WAS NOT
COMPELLED TO HAVE AGREED TO THAT REQUEST. THEREFORE, HE HELD THAT UNDER
SECTION 5542 THE CONFERENCE WAS NOT AN EVENT THE SCHEDULING AND CONTROL
OF WHICH COULD BE DICTATED BY THE AGENCY AND THAT THE GRIEVANT'S TRAVEL
TIME TO PHILADELPHIA WAS ACCORDINGLY COMPENSABLE HOURS OF EMPLOYMENT.
WITH RESPECT TO THE GRIEVANT'S RETURN TRIP TO PITTSBURGH, THE ARBITRATOR
RULED THAT UNDER SECTION 5542 A RETURN TRIP IS COMPENSABLE WHEN THE
INITIAL TRAVEL TIME QUALIFIES AS HOURS OF EMPLOYMENT. ACCORDINGLY, THE
ARBITRATOR AWARDED THE GRIEVANT 4 3/4 HOURS OF OVERTIME COMPENSATION.
AS ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS DEFICIENT AS
CONTRARY TO 5 U.S.C. 5542(B)(2). THE AUTHORITY AGREES.
CONTRARY TO THE DETERMINATION OF THE ARBITRATOR, THE GRIEVANT'S
TRAVEL TIME TO AND FROM PHILADELPHIA IS NOT COMPENSABLE HOURS OF
EMPLOYMENT UNDER 5 U.S.C. 5542(B)(2). IN TERMS OF THIS CASE, THE ONLY
CONDITION UNDER WHICH TIME SPENT IN A TRAVEL STATUS MAY PROPERLY BE
COMPENSATED AS HOURS OF EMPLOYMENT IS THAT SET FORTH IN SECTION
5542(B)(2)(B)(IV). /1/ AS RECOGNIZED BY THE ARBITRATOR, THIS PROVISION
REQUIRES THAT THE EVENT WHICH NECESSITATES THE TRAVEL BE ONE WHICH COULD
NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. HOWEVER, THE
GRIEVANT'S TRAVEL TO PHILADELPHIA DID NOT RESULT FROM SUCH AN EVENT
WITHIN THE MEANING OF SECTION 5542(B)(2)(B)(IV). AS EXPRESSLY NOTED BY
THE ARBITRATOR, THE CONFERENCE WAS IN FACT SPECIFICALLY SCHEDULED FOR
TUESDAY AND WEDNESDAY BY THE AGENCY'S SOLICITOR'S OFFICE IN
PHILADELPHIA. THUS, FOR PURPOSES OF THE STATUTORY PROVISION, THE
CONFERENCE WAS SCHEDULED ADMINISTRATIVELY BY THE AGENCY. SEE BARTH V.
UNITED STATES, 568 F.2D 1329, 1331 (CT. CL. 1978).
LIKEWISE, UNDER THE STATUTORY PROVISION, THE CONFERENCE WAS NOT AN
EVENT WHICH COULD NOT HAVE BEEN CONTROLLED ADMINISTRATIVELY. CONTRARY
TO THE ARBITRATOR'S DETERMINATION, CONTROL UNDER SECTION
5542(B)(2)(B)(IV) IS NOT JUDGED ON WHETHER IT CAN BE "DICTATED" BY THE
AGENCY. THE COURT OF CLAIMS RULED IN BARTH WITH RESPECT TO THE "COULD
NOT BE . . . CONTROLLED" LANGUAGE THAT IN ORDER FOR THE TRAVEL TIME TO
BE COMPENSABLE HOURS OF EMPLOYMENT, THERE MUST BE "A TOTAL LACK OF
GOVERNMENT CONTROL." 568 F.2D AT 1332. IN THIS CASE, THE ARBITRATOR
EXPRESSLY FOUND THAT EACH PARTY INFLUENCED THE SCHEDULING OF THE
CONFERENCE. ACCORDINGLY, THERE WAS NOT A TOTAL LACK OF AGENCY CONTROL,
AND UNDER THE STATUTORY PROVISION THE CONFERENCE WAS NOT UNCONTROLLABLE
ADMINISTRATIVELY. CONSEQUENTLY, THE GRIEVANT'S TRAVEL TIME TO
PHILADELPHIA DOES NOT MEET THE REQUIREMENTS OF SECTION 5542(B)(2), AND
SUCH TIME THEREFORE CANNOT CONSTITUTE COMPENSABLE HOURS OF EMPLOYMENT.
CONTRARY TO THE ARBITRATOR'S DETERMINATION WITH RESPECT TO THE
GRIEVANT'S RETURN TRIP, IT HAS BEEN UNIFORMLY HELD AND INSTRUCTED THAT A
RETURN TRIP ITSELF MUST MEET THE CONDITIONS OF SECTION 5542(B)(2) IN
ORDER TO HAVE SUCH TRAVEL TIME CONSTITUTE COMPENSABLE HOURS OF
EMPLOYMENT. E.G., 60 COMP.GEN. 681(1981); 59 COMP.GEN. 95(1979); FPM
SUPP. 990-2, BOOK 550, SUBCHAPTER S1-3. THE ONLY APPARENT PURPOSE OF
THE GRIEVANT'S WEDNESDAY EVENING TRAVEL WAS TO IMMEDIATELY RETURN TO HIS
DUTY STATION, AND IT IS WELL ESTABLISHED THAT AN EMPLOYEE'S MERE
PRESENCE AT THE EMPLOYEE'S DUTY STATION ON THE NEXT DAY IS NOT NORMALLY
CONSIDERED AN ADMINISTRATIVELY UNCONTROLLABLE EVENT SO AS TO MAKE TRAVEL
TIME OUTSIDE OF REGULAR DUTY HOURS COMPENSABLE HOURS OF EMPLOYMENT. 60
COMP.GEN. AT 684; 59 COMP.GEN. AT 98-99. CONSEQUENTLY, WITH NO PROPER
FINDING, AND WITH IT NOT OTHERWISE APPARENT, THAT THE GRIEVANT'S RETURN
TRIP ITSELF MEETS THE REQUIREMENTS OF SECTION 5542(B)(2), SUCH TRAVEL
TIME CANNOT CONSTITUTE COMPENSABLE HOURS OF EMPLOYMENT.
THEREFORE, IN VIEW OF THE ABOVE, THE ARBITRATOR'S AWARD OF 4 3/4
HOURS OF OVERTIME COMPENSATION IS DEFICIENT IN ITS ENTIRETY AS CONTRARY
TO 5 U.S.C. 5542(B)(2), AND ACCORDINGLY THE AWARD IS SET ASIDE.
ISSUED, WASHINGTON, D.C., NOVEMBER 18, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SECTION 5542(B)(2) ALONE GOVERNS THIS CASE BECAUSE IT IS APPARENT
FROM THE UNCHALLENGED RECORD BEFORE THE AUTHORITY THAT THE GRIEVANT IS
AN EMPLOYEE EXEMPT FROM COVERAGE UNDER THE FAIR LABOR STANDARDS ACT.