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57 FLRA No. 81
U.S. Dept. of the Treasury, Internal Revenue Service and NTEU (Vitaro, Arbitrator), 0-AR-3351 (Decided August 17, 2001)
The Authority rejected the Agency's argument that the Arbitrator could not have enforced Article 29, Section 3E as an express provision under § 254(b) of the Portal-to-Portal Act.The Authority explained that the FLSA was amended by the Portal-to-Portal Act, 29 U.S.C. § 254. Section 254(a) provides that no employer is liable for minimum wages, or overtime compensation, for time employees spend walking, riding, or traveling to and from the actual place of performance of work which the employees are entitled to perform. However, § 254(b) sets forth an exception that provides that an employer shall not be relieved from compensating employees if such activity is compensable by either an express provision of a written or nonwritten contract between the employee's collective-bargaining representative and his employer, or a custom or practice in effect, at the time of such activity.
The Authority found that nothing in § 254(b) required that a contract, custom or practice be set forth with any particular degree of precision or specificity. It further found that nothing in judicial opinions involving the Portal-to-Portal Act set forth a standard by which contracts, customs or practices are to be evaluated for purposes of determining an employer's liability for claims of compensation.
The Authority noted that the Arbitrator found that the parties' intent in negotiating Article 29, Section 3E, was to authorize compensation for employee commute time. On that basis, the Arbitrator held that the provision was an express provision under the Portal-to-Portal Act. The Authority found that neither the Agency's arguments nor the decisions on which it relied were sufficiently persuasive to demonstrate that the Arbitrator's award was incorrect.
As to the remaining Agency's claim, the Authority concluded that section 2429.5 of its regulations precluded its consideration. The Authority noted that section 2429.5 precludes consideration of any issue that could have been, but was not, presented to the arbitrator.Also rejected was the allegation that the award failed to draws its essence from the parties' agreement.