ARBITRATION
DECISION NO.:
564
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Public Safety
Division of Highway Patrol
Jackson, Ohio
DATE OF
ARBITRATION:
December 20, 1994
DATE OF
DECISION:
January 23, 1995
GRIEVANT:
Lois Darlene Holdcroft
OCB
GRIEVANCE NO.:
15-03-(93-11-16)-0120-01-07
ARBITRATOR:
Anna D. Smith
FOR THE
UNION:
Pat Schmitz, Assoc. Gen. Counsel
R. Randall Tract, Second Chair
FOR THE
EMPLOYER:
Michael Duco, Advocate
Kim A. Browne, Second Chair
KEY WORDS:
Mileage Reimbursement
ARTICLES:
Article 13 - Work Week, Schedules and Overtime
§ 13.06 -
Report-In Locations
Article 32 - Travel
§ 32.02 -
Personal Vehicle
FACTS:
The grievant had
been employed by the State Highway Patrol as a traveling commercial driver's
license (CDL) examiner II. The grievant
used a state vehicle to travel to various driver's examination stations where
she performed her assigned duties. In
1991, the grievant had a change in work site and later the state vehicle was
taken back from her pursuant to an Agency directive. As a result, the grievant had to use her personal vehicle to
travel to the CDL station in Jackson, Ohio.
The grievant lived in Athens, Ohio which is approximately 43 miles away
from the CDL station, and she also traveled from the CDL station to a skills
testing lot which was approximately one quarter to one half mile away. The grievant sought mileage reimbursement in
December, 1993 but this request was denied.
The grievant was informed that "employees who must report to work
at some site other than their normal report-in location, which is farther from
home than their normal report-in location shall be reimbursed for the
additional mileage.” Based on the State
Highway Patrol’s past practice, employees were not usually reimbursed when
locations were closer to their homes.
The grievant sought mileage reimbursement for use of her personal
vehicle.
UNION'S
POSITION:
The Union
believed that management failed to remit compensation to the grievant for three
kinds of distances traveled in her personal vehicle on state business. In the first situation, the grievant was not
reimbursed for the distance that she traveled between her official report-in
site at the Jackson District Headquarters and her work site, the CDL station,
which was four miles further from her home than her report-in site. In the second situation, the grievant was
not paid for the distance traveled between the CDL station and the skills
lot. In the final situation, the
grievant was not reimbursed for some traveling that she did outside of Jackson,
Ohio. The Union claimed that pursuant
to contract Article 32.02, when an employee uses a personal vehicle for state
business, mileage must be paid. The
Union also disagreed with management's contention that reimbursement for
distances less than between an employee's residence and work are not
recoverable. The Union requested that
the grievance be granted and that the grievant be paid $650, which is an
estimate of the total amount due for reimbursement, or, in the alternative,
that the grievant be given relief deemed appropriate by the arbitrator for the
approximate 2500 miles driven on state business.
EMPLOYER’S
POSITION:
Management
claimed that based on the Administrative Code, no mileage is paid for commuting
from an employee's residence to his/her headquarters. Therefore, since the grievant's headquarters was in Jackson
County, if she traveled from there to her home, no mileage was paid. Management also stated that the grievant was
not required to drive to the skills lot and also that they are not required to
reimburse the grievant for traveling to locations closer than her normal
report-in site, only greater distances are reimbursed. In sum, management believed that there was
no contract violation and therefore, the grievance should be denied.
ARBITRATOR’S
POSITION:
Under Article
32.02, in order for an employee to obtain mileage reimbursement, the Agency
requires that the employee use his/her personal vehicle. The Union believed that pursuant to Article
32.02, employees will get to their report-in locations at their own expense
unless they are required to report to a place more distant from home than their
normal report-in locations, in which case the additional miles are
compensable. As applied here, the
arbitrator held that the grievant was not required to use her personal vehicle
to get to her normal report-in location but she is entitled to reimbursement
for additional miles driven at the request of her employer. This is supported by the Administrative
Code, Section 126-1-02 (c)(2), which states that "a state agent shall not
be reimbursed for mileage commuting from his residence to his headquarters nor
from his headquarters to his residence."
What is important here is the grievant's normal report-in location. Based on the evidence provided, the
arbitrator observed that the Jackson County Headquarters was, in fact, the
grievant's original base. However, once
the CDL program was moved to the Jackson DX facility, this became her report-in
location. The employer was not
obligated to reimburse the grievant for the distance from the Jackson
Headquarters to the test facility because these were commuting miles to her
normal report in location.
As far as the
daily round trips from the CDL facility to the skills lot is concerned, the
arbitrator held that the grievant was not required to use her personal vehicle
for these trips. This distance was
short so other means of getting there were reasonably available. Finally, for the grievant's out-of-town
travel, these trips also did not qualify for mileage reimbursement due to the
shorter distances involved. The only
trip that was compensable was a trip that the grievant took after reporting to
work which required her to drive 50 miles round trip between the Jackson CDL
facility and the Pike County Joint Vocational School.
AWARD:
The grievance was
sustained in part and denied in part.
Pursuant to contract Article 32.02, the grievant was entitled to mileage
reimbursement for the 50 mile trip that she took after reporting to work, which
was within her scope of employment.
This trip is compensable at the rate of twenty five cents per mile. The case was also remanded to the parties
for determination of the distance from a trip taken on September 20.
TEXT OF
THE OPINION:
VOLUNTARY LABOR ARBITRATION TRIBUNAL
In the
Matter of Arbitration
Between
OHIO CIVIL SERVICE
EMPLOYEES ASSOCIATION
LOCAL 11, AFSCME, AFL/CIO
and
OHIO DEPARTMENT OF PUBLIC SAFETY,
DIVISION OF HIGHWAY PATROL
OPINION AND AWARD
Anna DuVal
Smith, Arbitrator
Case No.
15-03-931116-120-01-07
January
23, 1995
Lois
Darlene Holdcroft, Grievant
Mileage
Reimbursement
Appearances
For the Ohio Civil Service Employees Association:
Pat
Schmitz, Advocate
Associate
General Counsel
OCSEA/AFSCME
Columbus,
Ohio
R. Randall
Tract, Second Chair
OCSEA/AFSCME
Columbus,
Ohio
For the Ohio Highway Patrol:
Michael
Duco, Advocate
Assistant
Legal Counsel
Ohio
Office of Collective Bargaining
Columbus,
Ohio
Kim A.
Browne, Second Chair
Labor
Relations Specialist
Ohio
Office of Collective Bargaining
Columbus,
Ohio
Hearing
A hearing on this
matter was held at 9:05 a.m. on December 20, 1994, at the offices of the Ohio
Office of Collective Bargaining, Columbus, Ohio before Anna DuVal Smith,
Arbitrator, who was mutually selected by the parties, pursuant to the
procedures of their collective bargaining agreement. The parties stipulated the matter was properly before the
arbitrator and submitted one issue set forth below. They were given a full opportunity to present written evidence
and documentation on this issue, to examine and cross-examine witnesses, who
were sworn or affirmed and excluded, and to argue their respective
positions. Testifying for the Union
were Lois Darlene Holdcroft, Grievant and Michael Holdcroft. Testifying for the Highway Patrol were Staff
Lt. Richard G. Corbin and Sgt. Elbert W. Kelly. Also present were Capt.
Forrest Freeman, Jr. and Sgt.
Robert J. Young. A number of
documents were admitted into evidence (Joint Ex. 1-6, Union Ex. 1-4 and
Employer Ex. 1-2). The oral hearing
concluded at 11:30 a.m. on December 20, whereupon the record was closed. This opinion and award is based solely on
the record as described herein.
Statement of the Case
The Grievant has
been a traveling Commercial Drivers License (CDL) Examiner II (DX II) for the
State Highway Patrol in Jackson, Ohio since 1989. At the time she took this position (by means of a voluntary
demotion from dispatcher), she was told she would have, and later was given,
the use of a take-home State vehicle by her employer. Rarely reporting to the District-Headquarters to which she was
assigned, she used the car to travel to various transportation companies and
drivers' examination stations where she performed her assigned duties. In March 1991 her work site became the
Jackson Commercial Drivers License (CDL) facility (three or four miles from
the Jackson District Headquarters), with occasional travel to other
places. She continued to use the State
vehicle until November 1993, when she lost it pursuant to an Agency directive
that is not in dispute. Since that time
she has used her personal vehicle to travel to the Jackson CDL station from her
home in Athens, 43 miles away, from the CDL station to the skills testing lot
(a distance of one-quarter to one-half mile), and for trips taken outside of
Jackson.
In December 1993,
she sought reimbursement for mileage she believed she was entitled to, but this
request was denied and she was informed, "Employees who must report to
work at some site other than their normal report-in location, which is farther
from home than their normal report-in location, shall be reimbursed for the
additional mileage" (Union Ex. 3).
Staff Lt. Corbin testified that
it was not the Patrol's practice to reimburse when the location was closer to
home, and gave examples of both reimbursed and nonreimbursed miles.
The loss of the
State vehicle was grieved in November 1993, citing alleged violation of
Articles 2.01 (Non-Discrimination), 2.02 (Agreement Rights), 44.02
(Preservation of Benefits) and 44.03 (Work Rules) (Joint Ex. 3). Being unresolved at lower steps, the case
was appealed to arbitration where it presently resides for final and binding
decision. However, the Union no longer
seeks restoration of the State car, but reimbursement for mileage the Grievant
believes she is due under Article 32.02, and the parties stipulated a mileage
reimbursement question.
Issue
Was the Grievant
entitled to mileage reimbursement for the use of a personal vehicle under the
Collective Bargaining Agreement? If so,
to what is the Grievant entitled?
Pertinent Contract Provisions
ARTICLE 13 -- WORK WEEK, SCHEDULES AND OVERTIME
13.06 -
Report-In Locations
All employees
covered under the terms of this Agreement shall be at their report-in locations
ready to commence work at their starting time.
For all employees, extenuating and mitigating circumstances surrounding
tardiness shall be taken into consideration by the Employer in dispensing
discipline.
Employees who
must report to work at some site other than their normal report-in location,
which is farther from home than their normal report-in location, shall have any
additional travel time counted as hours worked.
Employees who
work from their homes, shall have their homes as a report-in location. The report-in location(s) for PUCO field
employees shall be the particular project to which they are assigned or 20
miles, whichever is less.
For all other
employees, the report-in location shall be the facility to which they are
assigned.
(Joint Ex.
1 & 2)
ARTICLE 32 -- TRAVEL
32.02 -
Personal Vehicle
If the Agency
requires an employee to use his/her personal vehicle, the Agency shall
reimburse the employee with a mileage allowance of no less than twenty-two and
one-half cents $.225 per mile Effective July 1, 1992, the mileage allowance
will be increased to $.24. Effective
July 1, 1993, the mileage allowance will be increased to $.25. If an employee uses a motorcycle, he/she
will be reimbursed no less than eight and one-half cents ($0.085) per mile.
(Joint Ex.
1)
32.02 -
Personal Vehicle
If the Agency
requires an employee to use his/her personal vehicle, the Agency shall
reimburse the employee with a mileage allowance of no less than twenty-five
($.25) cents per mile. If an employee
uses a motorcycle, he/she will be reimbursed no less than eight and one-half
cents ($0.085) per mile.
(Joint Ex.
2)
Arguments of the Parties
Argument
of the Union
The Union
contends it has established that the Grievant did not receive compensation for
three kinds of distances traveled in her personal vehicle on State
business. First, she was not
reimbursed for the distance between her official report-in site (which remained
the Jackson District Headquarters) and her work site (the CDL station), which
was four miles further from her home than her report-in site.
Second, she was
not paid for the distance between the CDL station and the skills lot. The Union says she was required to drive to
the skills lot when she had a State vehicle and this was never contradicted
when the car was taken away. Others,
including her former supervisor, drove it, and the memo she had led her to
understand she was to drive it as well. Additionally, it is logical that the distance be covered by car
because of the time it takes to travel by foot and the consequent loss of
efficiency.
Third, she was
not reimbursed for some travel outside of Jackson. Acknowledging the Patrol's evidence that it is not its practice
to pay for distances less than between an employee's residence and work site,
the Union nevertheless argues that the Contract places no such limitation. Section 32.02 says flatly that when an
employee uses a personal vehicle for State business, mileage shall be
paid. The Union claims the State is
trying to juxtapose another section of the Contract on this case. Section 13.06, which speaks to a different
concept, travel time, is inapposite.
The Union asks
that the grievance be granted in its entirety and that the Grievant be paid the
$650 she estimates is due and/or any other relief deemed appropriate by the
Arbitrator for the approximate 2500 miles driven on State business.
Argument
of the Employer
Regarding the
first category of miles, the State argues the Union's case is based on the lack
of a piece of paper informing the Grievant of her new report-in location. Whether she was told in writing is
irrelevant. She was told to report
there and, in fact, went to the CDL station every day, so she knew it was her
report-in location. There is no requirement
that she be informed in writing, but even if there were, the State would only
be guilty of sloppy paperwork. The
Administrative Code is clear. No
mileage is paid for commuting from an employee's residence to his/her
headquarters. The Grievant's
headquarters is Jackson County. If she
goes there from her home, no mileage is paid.
The Employer also says that Section 32.02 does not say what the Union
wants it to say. A condition precedent
for mileage reimbursement is that she be required to use her car. The State does not require this, only that
she come to work.
Regarding the two
daily trips to the skills lot, she was not required to drive there either. The memo the Union says created the
understanding that she was to drive was written when State vehicle usage was
being evaluated. These trips were
listed as possible justification for use of the car. The State did not suffer her to drive these trips as in an FLSA
scenario.
About the travel
out of Jackson, several were when she was told to report to Athens, her
resident city, because of snow. Paying
her mileage to report to a location closer than her normal report-in site would
create an absurdity such that she would never again be instructed to report
there. The past practice is clear,
pervasive, consistent and accepted:
only greater distances are reimbursed.
Section 32.02 is silent on whether greater distances are reimbursable,
therefore the past practice may be used to resolve the ambiguity. Additionally, the Contract should be read in
its entirety, and therefore Section 13.06 is relevant although it speaks to a
different concept.
Mileage for the
later trips, in May and September of 1994, were not submitted for payment and
are therefore not grievable. She cannot
rely on advice from the Employer not to submit these miles because the
Employer's advice was about the Headquarters-CDL station-skills lot travel, not
about out-of-town trips.
In conclusion,
the State says there has been no Contract violation and the grievance should
therefore be denied. Even if the
Arbitrator finds the State failed to inform the Grievant in writing of her new
report-in location, it is a de minimis violation
not warranting a retroactive award.
Opinion of the Arbitrator
Article 32.02
sets forth only one condition for mileage reimbursement: that the Agency
require the employee to use his/her personal vehicle. The Union makes no claim that normal commuting between one's
residence and headquarters is compensable, nor does it seek to recover the
miles between the Grievant's residence and the Jackson County
Headquarters. It does, however, seek
compensation for the additional miles driven to the Jackson CDL facility, even
though the Grievant did not report-in at Headquarters en route. Notwithstanding its argument that Article
13.06 does not apply to the Athens trips, the Union does appear to accept that
Article 32.02 (as well as 13.06) contemplates that employees will get to their
report-in locations at their own expense (as well as on their own time) unless
they are required to report to a place more distant from home than their normal
report-in location, in which case the additional miles (and time) are
compensable.
Applying this to
the instant case, the Grievant is not required to use her personal vehicle to
get to her normal report-in location, but is entitled to reimbursement for additional
miles driven at the behest of her Employer.
This is supported by the Administrative Code 126-1-02(C)(2) ("A
state agent shall not be reimbursed for mileage commuting from his residence to
his headquarters nor from his headquarters to his residence." (Employer
Ex. 1)). It is also supported by
Article 13.06 of the Collective Bargaining Agreement, the long-standing
practice of the parties as testified to by Staff Lt. Corbin, and the Union's own position in the first scenario (miles
driven to the Jackson CDL facility).
Whether any miles
in the first scenario are compensable depends on what the Grievant's normal
report-in location was. The evidence
clearly establishes that although the Jackson County Headquarters was her
original base, once the CDL program was moved to the remodeled Jackson DX
facility, the latter became her normal report-in location. Her supervisor told her to go there and, as
her own records show, she reported there for work nearly every day. Although there was no written instruction,
none is required. The fact that the
order was given, understood and accepted is clear from the Grievant's
conduct. Therefore, the Employer is not
obliged to reimburse her for the distance from the Jackson Headquarters to the
test facility because these were commuting miles to her normal report-in
location.
The second
scenario is of daily round trips from the CDL facility to the skills lot to set
up and remove the maneuverability cones.
These trips were also not required to be driven in the Grievant's
personal car. Employees and supervisors
who had State cars available to them were accustomed to driving the
comparatively short distance, but it is clear that other means were reasonably
available including riding with the first and last customer. It is more likely that it was habit that
influenced the Grievant's decision to continue to drive it when she lost the
use of the State car rather than any directive from the Employer. The memo brought in evidence was not
directed to her, but to Capt. Freeman,
to document the Grievant's use of the State vehicle at the time and perhaps to
justify her future use at a time when the State was evaluating its allocation
of these resources. Although the
Grievant is to be commended for her efficiency concern, it is the Employer who
has the right to make this decision based on its own analysis. These miles are, like those of the first
scenario, not compensable.
Finally, there is
the out-of-town travel. Four times in
January and February, the Grievant reported to the DX facility in her home town
because of poor weather. Although this
is not her normal report-in location, these trips do not qualify for mileage
reimbursement because of the shorter distance.
The Pike County
and Logan trips are another matter entirely.
The mileage for the first and last leg of each trip do not qualify
because all were commuting legs shorter than between her residence and the
Jackson CDL facility. On the other
hand, after she reported to work, she was required to use her personal vehicle
to make additional journeys in the service of her Employer. Thus, on May 3, she drove fifty miles round
trip between the Jackson CDL facility and the Pike County Joint Vocational
School; and on September 20, after she got to the Logan AAA office, she
continued to the Athens AAA office and on to the Athens DX station before
returning home. This travel is
compensable though the commuting legs are not.
The State's
argument that the Grievant has no standing in these last two instances is
misplaced. Once the Grievant received
the Employer's response to her inquiry (Union Ex. 3) it was reasonable for her
to rely on her grievance under the assumption that filing expense reports would
be futile except for clearly compensable travel.
Award
The grievance is
sustained in part, denied in part. The
Grievant was entitled to mileage reimbursement for the use of a personal
vehicle under Article 32.02 of the Collective Bargaining Agreement. She is entitled to 25¢ per mile for the
following travel:
May 3,
1994
Jackson
CDL to Pike Co. JVS
50 miles
September
20, 1994
Logan AAA
to Athens AAA
Mileage
unknown
Athens AAA
to Athens DX
Mileage
unknown
The Arbitrator remands the case to the parties for
determination of the September 20 distance and retains jurisdiction for sixty
days to resolve any dispute arising over its determination or the calculation
and payment of the remedy.
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
January 23, 1995