I. INTRODUCTION
William T. Steyh filed a grievance under formal appeals procedures provided for in §2-18-1001, MCA and under the provisions of ARM 24.26.301 et seq. He contended the employer, the Montana Department of Transportation (MDT) improperly denied him statutory meal allowance. On July 10, 2000, MDT filed a position paper denying they had failed to properly reimburse the claimant for his meals. The Board of Personnel Appeals investigator issued a preliminary decision on July 21, 2000, finding that the meal allowance was, in fact, due the grievant. On July 28, 2000, MDT filed a timely appeal.

Michael T. Furlong, Hearing Officer, conducted a hearing in this matter on November 14, 2000, in Helena, Montana. The grievant was represented by Carter Picotte, attorney for the Montana Public Employees Association (MPEA). Steyh appeared and testified. MDT was represented by Nick Rotering, staff attorney for the Department of Transportation. Jason Giard appeared as a witness for MDT.

Joint exhibits 1 through 27, grievant's exhibits 1 through 3, and respondent's exhibits A and B, were admitted into evidence without objection. Post-hearing briefs were submitted by the MDT on January 3, 2001, and by grievant counsel Picotte on January 17, 2001 (included in the record).

II. ISSUE

Whether grievant is entitled to meal allowance pursuant to §§ 2-18-501 and 2-18-502, MCA.

III. FINDINGS OF FACT

1. William T. Steyh has been employed by MDT as an engineering technician for 8 years. He resides in Butte and is assigned to the Butte District station. He is a member of the MPEA, which has entered into a collective bargaining agreement and agreement supplement with MDT.

2. Steyh reports to work each day at the Butte station. MDT requires him to submit a time sheet each week listing his work for each day.

3. During the period beginning October 25, 1999, through January 13, 2000, MDT assigned Steyh to work travel shifts away from the Butte headquarters at various construction sites in the district including West Yellowstone, White Sulphur Springs, Lima, Drummond, and Glen. Each construction site was more than three miles from the Butte headquarters. When required to travel to those projects, he left in the morning at the beginning of his designated shift and returned at the end of his normal work day. 4. Steyh initially submitted requests for a meal allowance on the weekly time sheets for the days he was required to travel. He stopped submitting requests for the meal allowances upon being advised by his district manager that MDT considered his entries for the meal allowance to be a falsification of his time cards.

5. On March 8, 2000, Steyh submitted a claim through the MPEA to the district administrator for $168.00 for statutory per diem and meals (Joint exhibits 12 & 14). He claimed the noon meal on days that he worked a scheduled travel shift. He also claimed an evening meal on two occasions when he was on a travel status longer than his normal work shift (11/1/00 and 11/3/00). His claim for meals was as follows:

WEEK ENDING	DATE	CLAIM	AMOUNT
10-29-99	10-25-99	noon meal	$ 6.00
	10-27-99	noon meal	6.00
	10-28-99	noon meal	6.00
11-05-99	11-01-99	noon meal	6.00
	11-01-99	evening meal	12.00
	11-02-99	noon meal	6.00
	11-03-99	noon meal	6.00
	11-03-99	evening meal	12.00
	11-04-99	noon meal	6.00
11-19-99	11-15-99	noon meal	6.00
	11-17-99	noon meal	6.00
	11-18-99	noon meal	6.00
11-26-99	11-22-99	noon meal	6.00
	11-23-99	noon meal	6.00
	11-24-99	noon meal	6.00
12-17-99	12-13-99	noon meal	6.00
	12-14-99	noon meal	6.00
	12-15-99	noon meal	6.00
12-24-99	12-21-99	noon meal	6.00
	12-22-99	noon meal	6.00
12-31-99	12-27-99	noon meal	6.00
01-07-00	01-03-01	noon meal	6.00
01-14-00	01-10-00	noon meal	6.00
	01-11-00	noon meal	6.00
	01-12-00	noon meal	6.00
	01-13-00	noon meal	6.00
TOTAL:			$ 168.00

6. On April 11, 2000, the district engineer issued a letter to the MPEA denying Steyh's request for meal allowance on the basis that the claim was not consistent with MDT's understanding of the collective bargaining agreement and the state per diem statutes. The denial also indicated that field bureau employees assigned to construction projects within the district are not considered in travel status and are not entitled to statutory expenses.

7. Article P of the of the Supplemental to the Collective Bargaining Agreement sets forth meal allowance for district construction personnel as follows: P. DISTRICT CONSTRUCTION ALLOWANCE

II. MEALS

1. District construction personnel are eligible for compensation for meals during the time they are required to stay overnight from the designated "permanent residence" because of work condition. "Permanent residence" for the proposes of this policy shall be the employee's currently designated and approved permanent residence. This "permanent residence" shall not be changed unless the District Construction Supervisor approved a relocation of the designated "permanent residence."

The determination of whether the employee is required to stay overnight and therefore eligible for compensation for meals shall be made by the District Construction Supervisor.

2. Compensation for district construction personnel meeting the criteria contained in Paragraph (1) (Meals) of this policy is established in the following schedule:
(a) Breakfast $5.00

(b) Lunch $6.00

(c) Dinner $12.00

3. Meals will be paid for district construction personnel who commute and who are required to stay overnight if they must be at the designated reporting stations prior to 6:30 a.m. (breakfast) or do not leave the designated reporting station until after 6:30 p.m. (dinner).

8. The collective bargaining agreement and supplement do not contain a waiver of the statutory meal allowance.

III. DISCUSSION/RATIONALE

Montana law §§ 2-18-501 and 2-18-502, MCA, entitles state employees, including the grievant, per diem if the employee is away from his assigned headquarters, engaged in official state business and in a travel status for more than 3 continuous hours. The law further provides that a state employee is entitled to one meal allowance if the travel performed was within the employee's assigned shift, or a maximum of two meal allowances if the travel begins before or was completed after the employee's assigned shift and did not exceed 24 hours.

Section 2-18-501, MCA, states in part:

[A]ll state employees must be reimbursed for meals and lodging while away from the person's designated headquarters and engaged in official state business . . . . (emphasis added)

Under the above, the meal allowance is mandatory when certain conditions are met. Section 2-18-502(2)(a), MCA, allows provides an allowance for one meal if travel was performed within the employee's assigned shift, or an allowance for a maximum of two meals if the travel begins before or was completed after the employee's assigned shift, and the travel did not exceed 24 hours. Further, the law provides and the employee travel policy requires that the employee be on travel status for more than 3 continuous hours and be at least 15 miles from either home or headquarters, whichever would be closer.

Respondent contends that employees, including the grievant, who are members of the collective bargaining unit are limited to meal allowance as provided for in the collective bargaining agreement.

The grievant contends that he meets the criteria for the statutory meal allowance, regardless of the terms of the collective bargaining agreement. He points out that no waiver exists in the contract that would exclude employee meal entitlement under the per diem statutes. Grievant argues that Fellows v. State of Montana, Department of Transportation, grievance #2-98 (1999), supports his claim. In Fellows, the Hearing Officer ruled that Fellows was due statutory meal reimbursement even though he did not qualify for the District Construction Allowance under the collective bargaining agreement. The Board of Personnel Appeals affirmed the decision. MDT contends that Fellows is factually distinguishable from the present case, but has provided no analysis of the differences.

Several Attorney General opinions have addressed the question on conflict which arises when a collective bargaining agreement provides an employee benefit which conflicts with a statutory employee benefit. In 43 A.G. Op 34 (1989), which addressed a longevity pay increase question, the Attorney General held:

The method for calculating longevity pay increases for undersheriffs and deputy sheriffs in §7-4-2510, MCA, is mandatory and may not be altered through collective bargaining.

In 38 A.G. Op. 20 (1979), which, in part, addressed a question of the extent of benefits which are a proper subject of negotiation between state employees and a school district, the Attorney General stated:

Title 2, Chapter 18, Part 6, MCA, establishes maximum and minimum benefits may not be varied through collective bargaining or other negotiations.

This grievance involves per diem benefits which are provided for in §§2-18-501, and 2-18-502, MCA. These Attorney General opinions establish that where benefits are set by statute, the employer may not vary them by collective bargaining or otherwise. The grievant must be paid per diem as provided by statute.

In accordance with these Attorney General opinions, the grievant's entitlement to the statutory meal allowance is mandatory and cannot be altered by the collective bargaining agreement.

MDT maintains that even if the claimant is entitled to the statutory allowance, he is entitled to be paid only for travel after December 8, 1999. Section 1-0370.30 of the Montana Operations Manual sets a three month limitation for filing reimbursement claims. The policy specifically states that an employee failing to file within 3 months of incurring expenses, waives the right to do so. The grievant filed his claim for meal allowance with the Department of Transportation on March 8, 2000. However, Steyh attempted to file his claims on his weekly time sheets. He stopped doing so after his supervisor told him MDT considered his claims to be a falsification of records. Under the circumstances, MDT should compensate Steyh for all of the meal allowances claimed in the grievance.

The record shows that the grievant filed valid claims for the noon meal allowance ($6.00 per day) while he was required to travel and work in excess of three miles from his duty station on 24 occasions during the period covered by his grievance. (FOF 5). He has not been reimbursed for those meal allowances. Therefore, he is entitled to $168.00 in allowance.

IV. CONCLUSIONS OF LAW

1. The Board of Personnel Appeals has jurisdiction over this matter pursuant to §2-18-1001, MCA, and ARM 24-26-301, et seq.

2. The grievant must be paid a meal allowance as provided in §§2-18-501 and 2-18-502, MCA.

3. Pursuant to his claim, the claimant is entitled to meal allowances in the amount of $168.00.

V. RECOMMENDED ORDER

The employer, Montana Department of Transportation, is hereby ordered to pay the grievant $168.00 for meal allowances through March 8, 2000.

DATED this day of May, 2001.

BOARD OF PERSONNEL APPEALS

By:
Michael T. Furlong,
Hearings Bureau