[ v21 p189 ]
21:0189(29)AR
The decision of the Authority follows:
21 FLRA No. 29
NATIONAL PARK SERVICE,
NATIONAL CAPITOL REGION,
U.S. DEPARTMENT Of INTERIOR
Agency
and
POLICE ASSOCIATION OF THE
DISTRICT OF COLUMBIA
Union
Case No. 0-AR-755
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Charles Feigenbaum filed be the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievants in this case, two Park Police officers, volunteered for
a temporary detail to New York City. In its request for volunteers, the
Agency had informed interested officers that Government-furnished
lodging would be provided and that two officers would be assigned to
each room. The grievants indicated that they would stay in lodging
provided by the Agency. They also received travel authorizations which
authorized payment of expenses not to exceed $75 per day. The grievants
testified that when they arrived at the designated hotel in New York
they were informed that no rooms had been reserved for the Park Police.
The grievants then made their own separate arrangement; for single
occupancy rooms at $39 per day for each room because the single room
rate was within the limit set by their travel authorizations. However,
the double occupancy rate would have been about half the single
occupancy rate for each of the grievants.
When supervisory personnel became aware of the grievants'
arrangements, they were informed that while they might be technically in
compliance with their travel authorizations, they could not continue to
stay in single rooms but had to double up. The grievants refused, their
details were terminated and they filed the grievances which were
eventually submitted to the Arbitrator. The grievants were, however,
also reimbursed for their hotel expenses at the single room rate.
The Arbitrator framed the issue in the grievances as whether the
Agency violated law, regulation, or the parties' collective bargaining
agreement by requiring the grievants to share a room and by terminating
their details when they refused to do so. He determined that there did
not appear to be any authority which addressed the question of the
number of employees that can be assigned to a hotel room. The
Arbitrator found, however, that 5 U.S.C. 5911(e), which prohibits
requiring an employee to stay in rental quarters unless certain
conditions are met, /1/ also precludes requiring employees to hotel
rooms unless the same conditions are met. The Arbitrator found that it
was reasonable to conclude that hotel rooms contracted for or reserved
by an agency are considered to be Government-furnished quarters and
therefore that the provision applies to such rooms well. He further
concluded that the intent of that provision was to afford employees in a
temporary duty travel states some degree of freedom to choose their own
accommodations and to protect them against being forced into inadequate
quarters. The Arbitrator added that the benefits of 5911(e) were
subject to a requirement that an employee must exercise the same care in
incurring expenses that a prudent person would exercise if traveling on
personal business and subject also to the conditions set forth in 5
U.S.C. 5911(e). The Arbitrator found that the grievants had not acted
imprudently and that the conditions in 5 U.S.C. 5911(e), which might
have permitted the employer to require the grievants to share room in
certain circumstances, had not been met in this case. The Arbitrator
therefore determined that the Agency acted improperly when it attempted
to require the grievants to share a room and that their refusal to
double up was not a legitimate reason for terminating their details. He
held that the Agency could not require employees to double up in hotel
rooms while in travel status unless the requirements of 5 U.S.C. 5911(e)
are met. He also awarded one grievant backpay for 41 hours of overtime
he estimated the grievant would have worked if his detail had not been
terminated.
III. FIRST EXCEPTION
A. Contention
In its first exception, the Agency alleges that the award is contrary
to law because the Arbitrator misapplied 5 U.S.C. 5911(e). The Agency
argues that the Arbitrator erred by equating hotel rooms reserved by the
Agency with "quarters" as used in 5 U.S.C. 5911(e) and by failing to
recognize that the grievants were not required to stay at the hotel but
had the option to stay elsewhere or to stay in single rooms in the hotel
and pay the extra cost. The Agency further argues that requiring
employees to share rooms is not the same as requiring them to stay at a
specific place and that there was no basis for the Arbitrator to
determine that the lodgings were inadequate when employees were required
to double up as there was no testimony or evidence in the record to
support such a determination.
B. Analysis and Conclusion
The Authority finds that the Agency has not established that the
Arbitrator erred by applying 5 U.S.C. 5911(e) or that his award is
contrary to that statutory provision. Rather, the Agency is merely
disagreeing with the Arbitrator's reasoning and conclusions. In the
absence of a showing that the award is contrary to law, this exception
provides no basis for finding the award deficient. Southeastern Program
Service Center, Social Security Administration and American Federation
of Government Employees, AFL-CIO, Local 2205, 7 FLRA 418 (1981).
The Authority notes that the Federal Travel Regulations (FTRs), which
govern official travel, require that an employee traveling on official
business is expected to exercise the same care in incurring expenses
that a prudent person would exercise if traveling on personal business.
FTR Chap. 1-1.3a. The FTRs also provide that heads of agencies are
responsible for ensuring that expenses incurred by travelers are
allowable subsistence expenses that were necessarily incurred in
connection with the specific travel assignment. FTR Chap. 1-8.3b. The
grievants were authorized a maximum actual expense subsistence of $75
per day. Their expense claims did not exceed that amount with single
occupancy rooms. The Agency was responsible under the FTRs for
determining whether the grievants' expenses were allowable and necessary
and whether the grievants acted prudently in incurring those expenses.
The Agency's determination is reflected in the fact that the grievants
were reimbursed for their single room expenses. Such action further
supports the conclusion that the Arbitrator's determination is not
inconsistent with authorities governing employee travel on official
business.
IV. SECOND, THIRD AND FOURTH EXCEPTIONS
A. Contentions
In its second, third and fourth exceptions, the Agency contends
respectively: that the Arbitrator's award fails to draw its essence
from the parties' agreement because the Arbitrator did not expressly
find that management violated the parties' agreement; that the
Arbitrator exceeded his authority by deciding an issue that was not
raised in the grievance or by the parties and that the award is based on
a nonfact because even assuming that 5 U.S.C. 5911(e) applies, the
Arbitrator erroneously concluded that portions of that provision, which
could have warranted requiring the employees to share a room, had not
been met.
B. Analysis and Conclusion
As already noted it is well-established that exceptions which
constitute nothing more than disagreement with an arbitrator's reasoning
and conclusions in resolving a dispute do not provide a basis for
finding an award deficient under the Statute. E.g., Defense Logistics
Agency, Defense Depot Memphis, Memphis, Tennessee and American
Federation of Government Employees, Local 2501 13 FLRA 5 (1983); U.S.
Army Corps of Engineers, New Orleans District and National Federation of
Federal Employees, Local No. 1124, 13 FLRA 70, 71 (1983). The Authority
finds that the Agency's contentions in support of its second, third and
fourth exceptions constitute nothing more than disagreement with the
Arbitrator's reasoning and conclusions in resolving the dispute before
him. Consequently, the Authority concludes that these exceptions
provide no basis for finding the Arbitrator's award deficient.
V. FIFTH EXCEPTION
A. Contention
In its fifth exception, the Agency principally alleges the award of
41 hours retroactive overtime pay to one of the grievants is contrary to
the Back Pay Act, 5 U.S.C. 5596.
B. Analysis and Conclusion
The Authority has held that the Back Pay Act requires that for an
award of backpay to be authorized, the arbitrator must find that an
agency personnel action was unjustified or unwarranted, that the
personnel action directly resulted in the withdrawal or reduction of the
grievant's pay, allowances, or differentials, and that but for such
action, the grievant otherwise would not have suffered such withdrawal
or reduction. American Federation of Government Employees, Local 3553,
AFL-CIO and Veterans Administration Medical Center, New Orleans,
Louisiana, 18 FLRA No. 65 (1985).
The Arbitrator determined that the Agency acted improperly when it
attempted to require the grievants to share a room and terminated their
detail when they refused. However, the Arbitrator also found that
"overtime was not certain" The Arbitrator did not expressly find both
that the unjustified termination of the detail directly resulted in the
loss of overtime pay and that but for this unjustified action the
grievant would have received such pay. The Authority, therefore, finds
that there is an insufficient legal basis for an award of backpay in
this case and that the Arbitrator's award of overtime pay is contrary to
the Back Pay Act.
VI. DECISION
Based on the foregoing, the Agency's exceptions numbered one through
four are denied, and the award is modified by striking the award of
backpay.
Issued, Washington, D.C., March 27, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ 5 U.S.C. 5911(e) provides:
The head of an agency may not require an employee or member of a
uniformed service to occupy quarters on a rental basis, unless the
agency head determines that necessary service cannot be rendered, or
that property of the Government cannot adequately be protected,
otherwise.