I. INTRODUCTION

William T. Steyh filed a grievance on June 23, 2000 under the formal appeals procedures provided for in § 2-18-1001, MCA, and under the provisions of ARM 24.26.301, et seq. He contended that the employer, Montana Department of Transportation (MDT), had improperly denied him statutory meal allowance. MDT denied that it had failed to properly reimburse him for meals.

Hearing Officer Michael T. Furlong conducted a hearing on this matter on November 14, 2000 in Helena, Montana. Following the hearing, the Hearing Officer issued his decision on May 8, 2001, finding that Steyh was entitled to meal allowances as provided in §§ 2-18-501 and 2-18-502, MCA. MDT appealed from that determination to the Board of Personnel Appeals (Board).

The matter came before the Board on September 13, 2001. The matter was before the Board for consideration of the Defendant's Objections and Exceptions to Recommended Order filed by Nick A. Rotering, attorney for the Defendant. The Board ruled as follows:

1. IT IS HEREBY ORDERED that this matter is remanded to the hearing officer for a determination as to whether, pursuant to policy 1-0300.35 of the Montana Operations Manual, the grievant was or was not in a travel status at the time of his reimbursement claims that are the basis of this action.

2. IT IS FURTHER ORDERED that the hearing officer may receive additional testimony and documentary evidence to resolve the above issue, if mutually agreed to by the parties.

Attorneys for both parties participated in a telephone conference call with the Hearing Officer on November 8, 2001 to discuss the procedure to be followed to comply with the Board's Remand Order. Parties agreed to file a joint statement of stipulated facts and to file briefs in support of their respective positions.

On January 23, 2002, the parties filed their stipulated facts. On February 1, 2002, Defendant filed its Brief in Support of Position. On February 25, 2002, Grievant filed his Brief in Support of Position.

The parties' stipulated facts are set out as follows:

For the work week ending October 29, 1999, the project number 2282 indicates that these were two bridges on I-15, located near Glen, Montana, approximately 45 miles south of Butte.

For the week ending November 5, 1999, project number 2580 indicates Carroll Hill near Wisdom, Montana, which is approximately 110 miles from Butte.

For November 12, 1999, there is no charge for meals.

For the week ending November 19, 1999, and the week ending November 26, 1999, the project numbers 2282 and 2283 are, again, the bridges near Glen, Montana, 45 miles south of Butte.

There is a gap until the payroll week ending December 17, 1999, again for project numbers 2282 and 2283, Glen, Montana, 45 miles south of Butte.

For the week ending December 24, 1999, project number 2200 is Townsend, Montana, approximately 80 miles from Butte.

December 31, 1991 [sic], project number 2200, Townsend, Montana, 80 miles from Butte.

In each case, the timesheets indicate the starting time at approximately 6:00 a.m. every morning and ending approximately 4:30 p.m. every afternoon. It is clear from these timesheets that the Grievant worked four tens in a workweek in order to achieve his 40 hour week. It is pointed out that in some cases there was paid holiday compensation time, annual leave and sick leave taken by the Grievant on some days which, in fact, reduce the number of hours that might otherwise constitute travel status.

II. DISCUSSION/RATIONALE

1-0300.35 TRAVEL STATUS WHEN GOING TO JOB SITE/WORK ASSIGNMENT.

If you travel each day from headquarters or home to a specific work site or work sites within the same general vicinity, you are not in a travel status and should not claim a meal allowance unless you have to stay overnight. You should consider the work sites to be your "headquarters" for that day. Examples of this type of situation include MDT employees who travel each day from their headquarters or home to a construction site or FWP employees who travel each day from their headquarters or home to patrol or maintain a specific state park or fishing access site. This does not apply to specific labor contract allowances. You may claim mileage expense, however, at the appropriate rate, if you are using your personal vehicle.

An essential issue in this case is to examine the question as to whether or not Steyh, in his capacity as an engineer technician, is required to travel each day from his headquarters to a specific work site in order to determine travel status and meal allowance eligibility pursuant to MOM 1-0300.35. The evidence shows that Steyh does not travel each day from his headquarters duty station. He is primarily required to report for duty at his designated home work station at MDT's district headquarters office in Butte where he performs his assigned job tasks. He is only periodically required to travel as needed to work sites away from the district office. This is not the same as DOT employees and Fish, Wildlife and Parks employees referenced in the above policy, who have to travel on a daily basis to designated work areas in the field away from the district headquarters office where they perform their typical job responsibilities. Steyh does not fit within the exemption to travel status prescribed in Policy 1-0300.35. He is therefore not precluded from being found to be in travel status by the language of this policy.

In order to claim meals under the state per diem statute, §§ 2-18-501 through 2-18-511, MCA, and MOM policies, a grievant must meet all three of the following requirements. First, he must be working at a designated work site other than his normal work station, particularly between the hours of midnight to 10:00 a.m. for the morning meal; 10:01 a.m. to 3:00 p.m. for the midday meal; and 3:01 p.m. to midnight for the evening meal. Second, he must be more than 15 miles from his normal work station. Third, he must have supervisor's approval. MOM 1-0370.40.

MDT takes the position that Steyh was a member of MPEA and covered by construction bureau allowance. As a result, when he does not fall under the normal contract language to collect the construction bureau allowance, it does not automatically make him eligible for meals under per diem. He still has to have his supervisor's approval in order to be considered in "travel status" and eligible to claim meal allowance. They allege that Steyh did not have direct approval by management to be considered in travel status on the days he claims the meal allowance.

Both parties agree that Steyh clearly met the first two requirements necessary to be eligible for the statutory meal allowance in that on the days he claimed meals allowance, he satisfied the work shift time requirements and also the mileage requirements.

MDT maintains that under MOM 1-0303.35, the work site is considered to be headquarters for that day. It specifically indicates that MDT employees who travel each day from their headquarters or home to a construction site do not fall in the travel status requirement. As a result, MDT contends that Steyh does not meet all the requirements of travel status on his claim.

Steyh, on the other hand, argues that the specific paragraph of the regulation upon which the Department relies, MOM 1-0300.35, reasonably interpreted does not deprive him of "travel status" here. The paragraph states that "if you travel each day from headquarters or home to a specific work site or work sites within the same general vicinity, you are not in travel status . . . ."

Steyh contends that MOM 1-0-300.35 allows the treating of work sites, as opposed to reporting headquarters, only where the site is in "the general vicinity". Reasonably interpreted, this regulation can only affect situations where "the vicinity" is a distance that does not otherwise meet either the time traveled requirement or the mileage requirement of § 2-18-502, MCA. Thus, if Steyh were to report to the Butte headquarters, which is his main station, and be sent to a site that was neither far enough away nor took sufficient time to get to, the regulation would prevent "travel status" by making the work site "headquarters" for instance. However, if the time and distance requirements are otherwise met, the regulation does not apply because the work site, by reasonable interpretation of the term "general vicinity," is outside of the general vicinity.

The evidence reveals that MDT treats bargaining unit employees differently than management and other non-bargaining unit employees when applying the statutory criteria for establishing travel status for the worker under MOM 1-0300.35. Management and other non-bargaining unit personnel are given approved travel status when they meet the time and mileage requirements provided under §§ 2-18-501 through 2-18-511, MCA, because they are considered to be outside of the general vicinity or in travel status if they have met the mileage and time requirements under the above sections of the law. MDT approves statutory meal allowance claims for supervisory and engineering employees who do not fall under the construction bureau allowance found in the collective bargaining agreement, which, under the identical set of circumstances, denies the right of MPEA employees to claim the meal per diem reimbursement solely on the basis that they fall under the construction bureau allowance provision of the collective bargaining agreement.

MDT's practice of approving or denying meal claims is inconsistent with §§ 2-18-501 through 2-18-511, MCA, that applies to meal reimbursement. Sections 2-18-501 and 2-18-502, MCA, specifically provide that all state employees (emphasis added) must be reimbursed for meals while away from the person's designated headquarters and engaged in official business. The law does not provide for separating employees into groups or categories when determining their travel status and entitlement to reimbursement for meal allowance.

Further, Attorney General Opinions 42 A.G. Op. 34 (1989) and 38 A.G. Op. 20 (1979) (footnote found in initial decision) establish that the statutory meal allowance may not be altered by the collective bargaining agreement. Thus, the MDT cannot alter the statutory interpretation of meal allowance eligibility of Steyh from other non-union employees regarding travel status solely on the basis that he is covered under the collective bargaining unit.

Steyh was in travel status at the time of his reimbursement claims pursuant to policy 1-0300.35 of the Operations Manual. In addition, Steyh was directed by his supervisor to travel and perform tasks at the work sites in question. Therefore, I conclude that he reported to those job sites upon the direct approval and authority of his supervisors in accordance with the requirements of "travel status" pursuant to MOM 1-03070-40.

The MDT further argues that Steyh did not meet the statutory requirements to be considered in travel status on November 15, 1999, November 18, 1999, and November 24 and December 27, 1999, on the basis that he used sick leave, annual leave or/and comp time leave during those days. During those days, there are no specific hours written in on the time sheet. Although the MDT has argued that on the days in question Steyh may have taken some portion of the day as leave of some kind, there is nothing in the asserted regulation that allows such "deductions" from time requirements because of the use of leave during the day which the employee met the statutory requirements of travel status.

III. CONCLUSION

William T. Steyh was in travel status at the time of his reimbursement claims pursuant to policy 1-0300.35 of the Montana Operations Manual.

DATED this 9th day of July, 2002.

BOARD OF PERSONNEL APPEALS

By: /s/ MICHAEL T. FURLONG

MICHAEL T. FURLONG
Hearing Officer