United States, Department of the Navy, Navy Public Works Center, Norfolk, Virginia (Agency) and Tidewater Virginia, Federal Employees Metal Trades Council (Union) (Authority decision, December 28, 2004)

Final FLRA decision. The Authority denies the agency's exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not address an unfair labor practice.

Plain-English summary

A Navy employee was detailed to another work site in the local area and sought reimbursement for the longer commute. An arbitrator found that the Navy failed to give timely written notice of a detail expected to last at least 30 days, as the union agreement required. He awarded mileage reimbursement for the first 30 days of the assignment. The Authority upheld the award, finding the arbitrator's reading of the notice rule plausible. It also rejected the Navy's claim that the Joint Travel Regulations barred mileage for a longer temporary assignment.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a); Joint Travel Regulations § C2401C.
• Outcome: Agency exceptions denied; first 30 days of mileage reimbursement upheld.
• Key point: Delayed written notice of a longer detail left the employee entitled to mileage for the initial 30 days under the agreement.

Full text (FLRA public release)

[ v60
p513 ]

60 FLRA No. 103

UNITED STATES

DEPARTMENT OF THE NAVY

NAVY PUBLIC WORKS CENTER

NORFOLK, VIRGINIA

(Agency)

and

TIDEWATER VIRGINIA

FEDERAL EMPLOYEES

METAL TRADES COUNCIL

(Union)

0-AR-3864

_____

DECISION

December 28, 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 Bernard T. Holmes 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 sustained a grievance alleging that the Agency violated the parties' agreement by denying the grievant mileage reimbursement associated with his detail to an alternate work site.

For the reasons that follow, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant was detailed to an alternate work site within the local area of his official duty station. Subsequently, the grievant's new supervisor initiated a Request for Personnel Action (RPA), which indicated that the detail was not to exceed 120 days. [n1] The grievant was not given a Standard Form (SF) 52, which confirmed the detail, until some time after his detail began. [n2]

The grievant requested mileage reimbursement due to his increased commute and the Agency denied his request. The Union filed a grievance alleging that the Agency's denial violated Article 11, § 2a of the parties' agreement. [n3] The grievance was unresolved and submitted to arbitration. The Arbitrator stated the issue as follows: "Was grievant denied mileage reimbursement in violation of the collective bargaining agreement and applicable agency rules and regulations? If so, what shall the remedy be?" Award at 2.

The Arbitrator found that under Article 11, § 2a(2) of the parties' agreement, the Agency is required to provide an employee with written notice when it anticipates that a detail will be for 30 days or more. [n4] In making this finding, the Arbitrator stated that the parties have negotiated a notice provision for details of 30 days or more and, unlike the provision for details of less than 30 days, the parties did not include the option of oral notice. The Arbitrator also determined that a delay in processing an RPA does not negate this written notice requirement and, as such, that the Agency was required to provide the grievant written notice, such as a memorandum, that an RPA had been initiated. According to the Arbitrator, finding that the timing of notice was solely within the Agency's discretion could result in the Agency never providing notice. [ v60 p514 ]

Consistent with the foregoing, the Arbitrator determined that by not giving the grievant written notice that an RPA had been initiated, the Agency violated § 2a(2) of the parties' agreement. In response to the Agency's argument that it complied with § 2a(2) because the grievant ultimately received an SF-52, the Arbitrator stated that such receipt alone does not eliminate the Agency's obligation to give written notice that an RPA had been initiated for a detail of 30 days or more. In addition, the Arbitrator rejected the Agency's contention that it complied with § 2a(2) by telling the grievant that his detail would last for an extended period of time by finding that oral notice is insufficient under Article 11, § 2a(2).

Based on the foregoing, the Arbitrator found that the grievant was entitled to assume that the assignment was temporary until 30 days had passed. Accordingly, the Arbitrator concluded that the Agency was obligated to provide the grievant with mileage reimbursement for the 30-day period following his assignment.

III. Agency's Exceptions

The Agency contends that the award fails to draw its essence from the parties' agreement. Specifically, the Agency claims that the Arbitrator's finding that the Agency was required to provide the grievant with written notice that an RPA had been initiated is contrary to the plain wording of Article 11, § 2a(2) of the parties' agreement. According to the Agency, this provision requires only that an SF-52 be issued to employees whose assignments will last for 30 days or more.

The Agency also contends that the award is contrary to § C2401C of the Joint Travel Regulations (JTRs), which provides for mileage reimbursement when an employee is assigned to work at an alternate work site. [n5] In this regard, the Agency asserts that the grievant's new work location is not an alternate work site because he was detailed for an extended period of time.

IV. Analysis and Conclusions

A. The award does not fail to draw its essence from the parties' agreement.

In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

The Arbitrator interpreted Article 11, § 2a(2) as requiring the Agency to provide an employee with written notice when it anticipates that an employee's assignment will last for 30 days or more. More specifically, the Arbitrator, recognizing that the issuance of SF-52s may be delayed due to the administrative process, determined that the Agency was required to provide the grievant with written notice, such as a memorandum, that an RPA had been initiated. In reaching this conclusion, the Arbitrator noted the problem that may arise if the timing of the notice is left solely within the Agency's discretion. The Arbitrator's conclusion that the Agency was required to provide the grievant with written notice in this manner is not implausible, irrational, or unfounded in fact. Accordingly, we find that the Agency has not shown that the award fails to draw its essence from the parties' agreement, and we deny this exception.

B. The award is not contrary to law.

When a party's exception involves an award's consistency with a Government-wide regulation, the Authority reviews any question of law raised by the award and the exception de novo. See Tidewater Va. Fed. Employees Metal Trades Council, 60 FLRA 10, 11 (2004) (citing NTEU, Chapter 24, 50 FLRA 330, 332 (1995) and United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). Under the de novo standard, 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). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

The Agency relies on § C2401C of the JTRs, which provides, in pertinent part, that an employee is [ v60 p515 ] entitled to mileage reimbursement when assigned to work at an "alternate work site[] within the local area[.]" Exceptions at 4. In this regard, the Agency contends that the grievant's new work location is not an alternate work site because he was detailed for an extended period of time. However, nothing in § C2401C defines when an employee's new work location constitutes an alternate work site or otherwise supports the Agency's claim that whether an employee is temporarily assigned to an alternate work site depends on the length of the temporary assignment. As such, the Agency has failed to demonstrate that the Arbitrator's award is contrary to § C2401C of the JTRs. Accordingly, we deny this exception.

V. Decision

The Agency's exceptions are denied.

Footnote # 1 for
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• Authority's Decision

An RPA is created by means of an electronic computerized system and ultimately produces a finalized, hard copy of a Standard Form (SF) 52.

Footnote # 2 for
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• Authority's Decision

According to the Agency, the delay in presenting an SF-52 to an employee is due to the administrative process involved in issuing SF-52s and because of this delay, an employee is verbally told of an impending personnel action before receiving an SF- 52.

Footnote # 3 for
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• Authority's Decision

Article 11, § 2a provides, in pertinent part:

When a Unit employee is assigned to work away from the name and location of their positions' organization recorded on their current SF50, but, within the boundaries of their official duty station, . . . reimbursement for mileage will be governed by the following:

(1) If management anticipates the assignment to be for less than 30 days, the employee will be notified orally or by memorandum. When required to drive a personnel vehicle, the employee will receive mileage reimbursement in accordance with the provisions of the Joint Travel Regulations . . . .

(2) If management anticipates the assignment to be for 30 calendar days or more, the employee will receive an SF52 notifying them of the change of duty location. In such a case no mileage reimbursement will be payable.

Award at 2.

Footnote # 4 for
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• Authority's Decision

We note that although the Arbitrator referred to Article 11, § 4 of the parties' agreement in making this determination, he was actually interpreting Article 11, § 2a(2). See Award at 7-8.

Footnote # 5 for
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• Authority's Decision

JTR § C2401C provides, in pertinent part:

When use of a [privately owned conveyance] is authorized/approved for travel between an employee's residence or the [permanent duty station] and one or more alternate work sites within the local area, the employee shall be paid mileage for the distance that exceeds the employee's commuting distance.

Exceptions at 4.