Department of Labor
| Decision Date | 08 May 1978 |
| Docket Number | B-190494 |
| Parties | DEPARTMENT OF LABOR - ARBITRATION AWARD OF OVERTIME PAY FOR TRAVEL TIME |
| Court | Comptroller General of the United States |
Department of labor questions legality of arbitration award that employees required to travel on Sunday to attend training were entitled to overtime pay for their travel time. Arbitrator concluded that travel resulted from an event beyond control of agency because agency had relinquished control over scheduling to training contractor. Award conflicts with 5 U.S.C. Sec. 5542 and federal personnel manual and May not be implemented.
This decision is in response to a letter dated October 11, 1977 from Mr. Jack A. Warshaw, deputy assistant secretary for labor-management relations, department of labor, requesting our ruling on an arbitration award captioned national union of compliance officers (independent) and labor-management services administration, U.S. Department of labor (gamser arbitrator) (fmcs case no. 76k19418), March 21, 1977.
This case involves the issue of whether certain employees of the labor- management services administration, department of labor, are entitled to overtime pay for travel performed on Sunday to a training site. The issue arose out of the following circumstances.
The labor-management services administration contracted with the international foundation of benefit plans to provide the training, with sessions scheduled to begin at 9 A.M. On mondays and to conclude in the afternoon on fridays. The administration issued a memorandum directing the employees to arrive at the training site on the Sunday evening prior to the start of the training sessions in order to insure that such employees would be present at the beginning of training on monday morning. Employees who were exempt from the requirements of the fair labor standards act were required to travel on their own time without compensation to the training site. Nonexempt employees were compensated for such travel to the extent that such compensation was required by the terms of the fair labor standards act.
The union filed a grievance contending that the collective-bargaining agreement was violated in that the employees who were exempt from the fair labor standards act should have been compensated for the time spent in Sunday travel status or, that under the provisions of the agreement travel should have been scheduled during normal working hours. In this regard, article 30, section 1, of the agreement required the labor- management services administration, consistent with 5 U.S.C. Sec. 5542 governing overtime pay, to schedule and arrange for all official travel for unit employees to occur within regular hours of work, to the maximum extent practicable. The dispute as to the alleged violation of the above- cited agreement provision could not be informally resolved by the parties. Hence, the issue of whether employees required to travel on Sunday were entitled to overtime pay or compensatory time off, was referred to arbitration.
Arbitrator's opinion and award
The arbitrator rendered his decision on the basis of written briefs and supporting documents submitted by the parties and did not hold a hearing on the matter. In his decision the arbitrator focused on the provisions of 5 U.S.C. Sec. 5542(b) as the central issue of the dispute. That statute reads in relevant part as follows:
With a view toward the above-quoted statutory criterion, the arbitrator discussed the issue of whether the Sunday travel resulted from an event which could not be scheduled or controlled administratively by the agency. In this connection the arbitrator reviewed the civil service commission's implementing regulations and instructions in subchapter s1 book 550, federal personnel manual (FPM) supplement 990-2. The arbitrator found that under these FPM provisions, there exists a presumption that the government controls the scheduling of a course when it is conducted by an outside institution for the benefit of the government. In light of this presumption the arbitrator reviewed the terms and conditions of the contract between the department of labor and the training contractor and concluded as follows:
On the basis of the above finding that the labor-management services administration had relinquished administrative control over scheduling to the contractor, and upon his further finding that the administration failed to prove that the travel could not have been done "to the maximum extent practicable" within regular duty hours, the arbitrator held that the employees required to travel on Sunday were entitled to overtime pay or compensatory time off under the collective-bargaining agreement and 5 U.S.C. Sec. 5542.
The department of labor appealed the arbitrator's award to the federal labor relations council, but the council denied the petition for review on the ground that the agency's exception was directed to the arbitrator's findings of fact which are not to be questioned on appeal. Flrc no 77a-39, August 25, 1977.
Discussion and conclusion
In asking for a decision from the comptroller general as to the legality of payment, the labor department challenges the arbitrator's conclusion that its contract with the training contractor had removed the scheduling of training activities from its administrative control and therefore required overtime payment for the Sunday travel. The labor department argues that the language of the contract and the affidavit of the contracting officer shows the agency maintained control over scheduling.
We have reviewed the training contract and have discovered that the arbitrator apparently overlooked article VII, regarding the scheduling of course dates and times. This provision reads in part as follows:
In addition, article IV, task 2 provides that the contractor, in cooperation with the agency, shall "assist" in selecting and scheduling trainees, and task 3 provides that the contractor "in consultation with" the agency shall establish a schedule of classes.
These provisions of the training contract clearly require the contractor to coordinate the course schedules with the agency's representative and to secure his approval of dates and times of the course sessions. We, therefore, agree with the labor department that the labor-management services administration maintained control over the scheduling of the training courses.
We do not, however, turn our decision upon our disagreement with the arbitrator's interpretation of the training contract. In our view, the overtime statute and the implementing regulations preclude treating the Sunday travel in question as constituting an uncontrollable event for the purposes of 5 U.S.C. Sec. 5542(b)(2)(b)(iv).
The general rule is that travel time outside of regular duty hours is not considered hours of employment and is not compensable except as provided for by the congress in 5 U.S.C. Sec. 5542. See barth and levine v. United states, 215 ct.Cl. (ct.Cl. No. 349-74, ). The relevant statutory exception in 5 U.S.C. Sec. 5542(b)(2)(b)(iv) permits overtime pay for travel that "results from an event which could not be scheduled or controlled administratively."
The civil service commission is authorized by 5 U.S.C. Sec 5548(a) to prescribe regulations to administer the overtime statute. In implementing the statutory exception in 5 U.S.C. Sec. 5542(b)(2)(b)(iv), the commission has interpreted the phrase "could not be scheduled or controlled administratively" to refer to "the ability of an executive agency *** to control the event...
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