37:1469(118)AR - - HHS, SSA, Baltimore, MD and AFGE Local 1923 - - 1990 FLRAdec AR - - v37 p1469


[ v37 p1469 ]
37:1469(118)AR
The decision of the Authority follows:


37 FLRA No. 118

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

O-AR-1732

DECISION

October, 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Joseph M. Stone. The Arbitrator denied the grievants' claims for overtime compensation and night differential pay for responding to telephone calls concerning official business at their homes after a normal tour of duty. The Arbitrator sustained the grievants' claims for night differential pay for work performed at the work site between the hours of 6 p.m. and 6 a.m. The Arbitrator also sustained the grievants' claims for overtime compensation for time spent in traveling between their residences and their work stations when called back to work to perform overtime.

The Agency and the Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union also filed an opposition to the Agency's exceptions.

We conclude that the award is deficient, and we will modify the award accordingly.

II. Background and Arbitrator's Award

The grievants in this case are computer specialists at the Agency's National Computer Center in Baltimore, Maryland. The computer center operates 24 hours per day and 7 days per week. Computer specialists must be available at all times in case of hardware or software breakdowns. They must also be available to offer advice on the telephone when Social Security offices in other areas of the country experience computer problems and call the center for advice. To maintain their availability, computer specialists rotate on-call duty assignments with each period of on-call duty averaging approximately 2 weeks. When on call, the specialist is given a telephone "beeper" and is on call for 24 hours per day and 7 days per week. The requirement of on-call duty is specified in the computer specialist position description and the grievants in this case had been informed of the requirement by their supervisors.

According to the Arbitrator, the grievants, when on call, occasionally received telephone calls at home after the end of their regular work day. Some calls lasted only "a minute or two" while others lasted "as long as a couple of hours." Award at 2. As a result of a telephone call, the grievants might have to report to the computer center or simply provide advice over the telephone in order to solve the computer problem about which they were called. The time spent on such calls was to be recorded in technical support logs, but frequently the time was not recorded.

When the grievants who were on call physically returned to the computer center following a telephone call, they were compensated for a minimum of 2 hours of overtime. They did not receive overtime for the time spent at their residences responding to telephone calls about computer problems. However, according to the Arbitrator, at no time during the period involved did the grievants seek approval of overtime compensation for such time.

A grievance was filed contending that since March 17, 1982, the grievants were entitled to be paid: (1) overtime compensation for the time worked at their residences beyond their regularly scheduled hours; (2) a night pay differential (NPD) for such time worked between 6 p.m. and 6 a.m.; and (3) overtime compensation and NPD for travel to and from their residences to the work site when they are called back after their regularly scheduled duty hours. The grievance was not resolved and was submitted to arbitration.

The Arbitrator denied the grievants' claims for overtime compensation and NPD for responding to telephone calls at their homes. The Arbitrator sustained the grievants' claims for NPD for work performed at the work site between the hours of 6 p.m. and 6 a.m. The Arbitrator also sustained the grievants' claims for overtime compensation for time spent in traveling between their residences and their work stations.

The Arbitrator denied the grievants' claims for overtime compensation and NPD under 5 U.S.C. § 5542 because he found that responding to telephone calls is not viewed as hours of work by the Comptroller General and that responding to the calls was not work officially ordered or approved for the grievants. He also denied the grievants' claims because of an agency regulation pertaining to approval of overtime work performed in employee homes. He noted that the regulation provided that "no compensation shall be paid for overtime performed in an employee's home unless prior authorization in writing is received from the Assistant Secretary for Personnel Administration." Id. at 5 (quoting HHS Instruction 300-2). He found that no grievant had requested such approval, and he rejected the Union's claim that "management was negligent in documenting the work performed for post-approval purposes." Id. at 31 (quoting the Union's argument).

In sustaining the grievants' claims for NPD for work performed at the work site between the hours of 6 p.m. and 6 a.m., the Arbitrator rejected the Agency's contention that NPD was not payable because the hours of work between 6 p.m. and 6 a.m. must be part of the grievants' regularly scheduled workweek. The Arbitrator concluded that NPD was payable when the grievants performed work in a unit with an established night shift.

In sustaining the grievants' claims for overtime compensation for time spent in traveling between their residences and their work stations, the Arbitrator concluded that compensating such travel time in a call-back overtime situation was consistent with 5 U.S.C. § 5542.

III. Agency's Exceptions

A. Agency's Position

The Agency contends that by ordering payment of NPD, the award is contrary to 5 U.S.C. § 5545. The Agency also argues that by ordering compensation paid to the grievants for time spent in traveling between their residences and their work stations, the award is contrary to 5 U.S.C. § 5542(b)(2).(1)

With respect to payment of NPD, the Agency argues that the award was not based on the definition of "regularly scheduled" work that is required by law. With respect to payment for travel time, the Agency maintains that the award conflicts with 5 U.S.C. § 5542(b)(2)(B)(iv) because the grievants' travel resulted from an event which could be scheduled or controlled administratively.

B. Union's Position

The Union contends that payment of NPD is consistent with law. The Union argues that NPD is appropriate for employees who perform occasional overtime during a scheduled night shift in their office or work unit even if they are not regularly scheduled for the night shift. The Union also argues that NPD is appropriate because the grievants' overtime work meets the requirements for "regularly scheduled" work.

The Union also maintains that the payment for travel time is consistent with 5 U.S.C. § 5542(b)(2)(B)(iv). The Union argues that because the Agency has no way of knowing in advance when a computer problem will occur, the Agency did not exercise any administrative control over the occurrence or schedule the work of the grievants.

IV. Union's Exceptions

The Union contends that by denying the grievants' claims for overtime compensation and NPD for responding to telephone calls at their homes, the award is contrary to law and regulation and is incomplete.

The Union maintains that to meet the requirements of 5 U.S.C. § 5542 for the payment of overtime, the grievants must have worked the overtime claimed; they must have performed the regular work activity of their positions; and the work performed must have been "officially ordered or approved" within the meaning of section 5542. The Union claims that the only requirement in dispute was whether the work was officially ordered or approved. The Union argues that, under case precedent, when, as in this case, employees are induced or encouraged by supervisors to work overtime, such inducement rises to the level of being officially ordered or approved. The Union further argues that, under case precedent, the agency regulation cannot be invoked to avoid the requirements of law for payment of overtime when the performance of overtime is induced by the Government. The Union asserts that this is especially true in this case in view of the requirement of the regulation that the performance of the work be personally approved in advance by the Assistant Secretary for Personnel Administration, a mandate the Union argues evidences a clear intent of the Agency to avoid the requirements of law.

V. Analysis and Conclusions

A. Award As It Pertains to NPD

We conclude that by sustaining the grievants' claims for NPD for work performed at the work site between the hours of 6 p.m. and 6 a.m., the award is contrary to 5 U.S.C. § 5545(a) and 5 C.F.R. parts 550 and 610. Pursuant to section 5545(a), the payment of a night differential is authorized for "regularly scheduled" work performed between the hours of 6 p.m. and 6 a.m. We find that the award of NPD was not based on the definition of "regularly scheduled" work that was required to be applied. However, we find that the Arbitrator's denial of NPD for work at home is consistent with law and regulation and no basis is provided for finding the denial deficient.

Under 5 U.S.C. §§ 5548 and 6101(c), the Office of Personnel Management (OPM) is authorized to prescribe regulations necessary for the administration of premium pay and hours of duty. In accordance with that authority, OPM in 1983 revised several provisions of regulations in 5 C.F.R. parts 550 and 610 governing pay administration and hours of duty. The provisions pertained to an agency's responsibility to establish regularly scheduled workweeks for its employees and to an employee's entitlement to premium pay for regularly scheduled work. OPM stated that the purpose of the revisions was to clarify the definition of "regularly scheduled" and the relationship between an agency's requirement to establish workweeks for its employees and an employee's entitlement to premium pay for that work. 48 Fed. Reg. 3931 (1983). For purposes of the Federal Employees Pay Act of 1945, as amended, (codified in 5 U.S.C. chapters 55 and 61), including specifically section 5545(a), OPM has defined "regularly scheduled" work as work which has been scheduled in advance as part of the employee's regularly scheduled administrative workweek. 5 C.F.R. § 550.103(p); 5 C.F.R. § 610.102(g); see also United States Department of Justice, Immigration and Naturalization Service and Immigration and Naturalization Service Council, American Federation of Government Employees, Local 2805, 19 FLRA 823 (1985) (INS). OPM advised that NPD would not be paid for work at night outside the employee's scheduled workweek. OPM stated that in order to be considered regularly scheduled and to warrant the payment of NPD, the employee must be scheduled to perform the night work and the work must be scheduled in advance as part of the employee's regularly scheduled administrative workweek. 48 Fed. Reg. 3931.

In promulgating these revisions, OPM specifically addressed whether the revised regulations would be prospective only. OPM declared that the revisions would apply retroactively because the purpose of the revisions was to clarify the meaning of the term "regularly scheduled" that was originally intended by the Federal Employees Pay Act. Specifically, OPM ruled as follows:

[A]ll claims for the payment of premium pay for "regularly scheduled" work (including work performed during prior periods) should be settled based on the definition of this term as clarified in these regulations.

48 Fed. Reg. at 3933.

Applying these revised regulations in this case, we conclude that the grievants were not entitled to NPD for work performed at the work site or at home between the hours of 6 p.m. and 6 a.m. because such work was not scheduled as part of their own administrative workweeks. Therefore, the Arbitrator's award of NPD for work performed at the work site is deficient, but his denial of NPD for work performed at home is not deficient. See INS (award of NPD not based on definition of "regularly scheduled" work required to be applied); 63 Comp. Gen. 316 (1984) (it is clear that under the revised regulations the claimants are not entitled to NPD because the night work was not scheduled as part of their own administrative workweeks). In addition, we reject the Union's contention that the work performed by the grievants was regularly scheduled. This work was irregular and occasional and was not work scheduled in advance and as part of the grievants' administrative workweek. The only thing scheduled in advance for the grievants was their on-call duty. However, under 5 C.F.R. § 610.111(c)(2), only standby duty and not on-call duty is included as part of the regularly scheduled administrative workweek. The grievants' on-call duty does not qualify as standby duty because the grievants were not required to remain within the confines of their work stations. 5 C.F.R. § 610.111(c)(2).

In INS, in accordance with OPM's directions in promulgating the revised regulations, the Authority applied the revisions to the period of the grievance that predated February 23, 1983, the effective date of the revisions. 19 FLRA at 825-26. We will follow INS and OPM's directions and apply the revisions to the period of the grievants' claims that predate February 23, 1983. Consequently, we conclude that the entire award of NPD is deficient. In reaching this conclusion, we acknowledge the decision of the Comptroller General in 63 Comp. Gen. 316, refusing to apply the revised regulations retroactively. However, in American Federation of Government Employees v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986), the court held that the FLRA had no authority to adjudicate the validity of these same regulations. We view the court's holding to encompass the instruction of OPM in the Federal Register to settle all claims on the basis of the revised regulations. Accordingly, we will not consider the validity of the instruction and we will not follow the decision of the Comptroller General whose jurisdiction and authority is different than ours. Therefore, we will strike that portion of the award ordering NPD for work performed at the work site, and we deny the Union's exception to the denial of NPD for work performed at home.

B. Award As It Pertains to Overtime Compensation For Time Spent Traveling

We conclude that by sustaining the grievants' claims for overtime compensation for time spent traveling between their residences and their work stations when called back to work, the award is contrary to 5 U.S.C. § 5542.(2)

It is widely recognized that normal travel by an employee between home and work is a normal incident of employment and is not compensable as hours of work or employment under section 5542. For example, Mossbauer v. United States, 541 F.2d 823 (9th Cir. 1976) (Mossbauer); United States Department of the Interior, Bureau of Land Management, Eugene District Office and National Federation of Federal Employees, Local 1911, 6 FLRA 401 (1981); 41 Comp. Gen. 82 (1961). The Union argues that the award is sustainable under the provisions of 5 U.S.C. § 5542(b)(2)(B)(iv), as amended, because the call-back overtime work could not be scheduled or controlled administratively. We find that the travel time ordered to be compensated is normal home-to-work (work-to-home) travel and is not compensable under section 5542(b)(2).

Section 5542(b)(2) provides, as follows:

(2) time spent in a travel status away from the official-duty station of an employee is not hours of employment unless--

(A) the time spent is within the days and hours of the regularly scheduled administrative workweek of the employee, including regularly scheduled overtime hours; or

(B) the travel (i) involves the performance of work while traveling, (ii) is incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively; including travel by an employee to such an event and the return of such employee from such event to his or her official-duty station.

However, by its own terms, section 5542(b)(2) only applies to "time spent in a travel status away from the official-duty station of an employee." On the basis of this language, the court in Mossbauer ruled that travel within the boundaries of an official duty station is not governed by the exceptions and exclusions of section 5542(b)(2). 541 F.2d at 825. The court, in addition, advised that, unless an employee traveling within the boundaries of the official duty station is performing functions required by, or conferring benefits on, the employer, which distinguish the travel from commuting, the travel time does not constitute "hours of work" under 5 U.S.C. § 5542(a) and is not compensable. Id. at 826.

Similarly, in 41 Comp. Gen. 82, the Comptroller General was presented with the following question:

1. May an employee who responds to an emergency call-back be compensated for the entire period of time required by the call-back, beginning when he leaves his residence and ending when he returns to his residence?

Id. at 84. The Comptroller General ruled that the time spent by an employee in traveling between his residence and headquarters may not be regarded as "time spent in a travel status away from the official duty station" within the meaning of section 5542(b)(2). Id. The Comptroller General further ruled that the time was not otherwise compensable because it was unapparent that any actual work was performed during the travel between the residence and headquarters or that the travel was performed under arduous conditions. Id. at 84-85.

Accordingly, we rule in this case that the time spent by the grievants in traveling between their residences and their work stations when called back to work is not compensable beyond the 2-hour minimum dictated for all call-back overtime work under 5 U.S.C. § 5542(b)(1) and 5 C.F.R. § 550.112(h). Therefore, we will strike the award of compensation for this travel time.(3)

C. Award As It Pertains to Overtime Compensation For Responding to Telephone Calls at Home

We conclude that the denial of overtime compensation for responding to telephone calls at home after a normal tour of duty is contrary to 5 U.S.C. § 5542.

Contrary to the finding of the Arbitrator, the Comptroller General has repeatedly authorized the payment of overtime compensation under section 5542 for work performed at home. For example, 65 Comp. Gen. 49 (1985); B-205118, Mar. 8, 1982; B-169113, Mar. 24, 1970.

In 65 Comp. Gen. 49, the claimants were employees who used automated data processing equipment in their homes to adjust malfunctioning navigation instruments located elsewhere. The Comptroller General approved the payment of overtime compensation for work actually done provided procedures were established for recording and verifying the performance and the duration of the work. Id. at 52-53.

In B-205118, the claimants were supervisory customs inspectors who were designated on a rotating basis to serve as duty supervisors outside their regular duty hours. The duty supervisor was required to respond to telephone calls pertaining to inspection duties that arose after normal duty hours and to make such calls as were necessary to attend to official matters. The claimants claimed overtime compensation under section 5542 for the time they actually spent receiving and making telephone calls. The Comptroller General ruled that the time spent on the telephone incident to carrying out official business was compensable under section 5542 in the amounts of time provided by the agency's administrative procedures for crediting and paying irregular or occasional overtime work.

In B-169113, the claimants included Passport Office employees who were required to receive and make lengthy telephone calls at their homes outside their regular office hours to resolve problems associated with emergency passport requests. The Comptroller General ruled that the telephone work performed in the homes of the designated employees after their regular tour of duty, the amount of which was ascertainable from office logs, was compensable under section 5542.

We also find that the Arbitrator erred in relying on a regulation pertaining to the approval of overtime performed in employees' homes. In Byrnes v. United States, 163 Ct. Cl. 167 (1964) (Byrnes), two regional offices of the Internal Revenue Service refused to formally authorize regular overtime for their investigators, but informed the employees they would still be expected to carry out their duties, even if this meant overtime hours. The court rejected the Government's claim that the agents could not be compensated because of a lack of written approval of the overtime. The court held that "[t]he invocation of departmental regulations requiring specific written authority for overtime cannot avoid the plain requirements of the statute for overtime pay when the performance of this overtime is induced by the Government[.]" 163 Ct. Cl. at 174. Relying on Byrnes, the court in Manning v. United States, 10 Cl. Ct. 651, 663 (1986), held that overtime work performed with the knowledge and inducement of supervisory personnel is deemed to be officially ordered and approved and that the law will treat as issued those orders that ought to have been issued.

Applying these decisions in this case, we conclude that the grievants' responding to telephone calls concerning official business at their homes after a normal tour of duty is compensable under section 5542. We find that by virtue of the grievants' on-call duty assigned as part of the duties of their position and set forth in their position descriptions, the grievants were induced to perform overtime work in responding to telephone calls at home concerning computer problems and that we will treat as issued those orders that ought to have been issued. Accordingly, the Arbitrator's award is deficient by denying the grievants' claims as not compensable under section 5542, and we will vacate this portion of the award.(4)

In vacating the award, we acknowledge the Arbitrator's statement that if his conclusion were in error, "there would exist the practical problem of ascertaining at this point in time the actual amount of time spent on such calls." Award at 31. As we advised in General Services Administration and American Federation of Government Employees, Council 236, 37 FLRA 481 (1990) (GSA), we make no determinations as to which employees are entitled to compensation or the amount of compensation to which they are entitled. Those determinations must be made in accordance with law, regulation, and this decision in a manner deemed appropriate by the parties in conjunction with implementation of the award, as modified. See GSA, 37 FLRA at 488. As indicated by the Comptroller General, applicable law requires that the employees establish the performance of the claimed work and the duration of the work. Applicable provisions of regulation include the administrative procedures for crediting irregular or occasional overtime. 5 C.F.R. § 550.112(a)(2) (a quarter of an hour shall be the largest fraction of an hour used for crediting irregular or occasional overtime; when performed in other than the full fraction, odd minutes shall be rounded up or down to the nearest full fraction of an hour used to credit overtime); FPM Supplement 990-2, Book 550, Appendix I at a. (3)-(4) (instructions for crediting irregular or occasional overtime work). Appropriate means for making these determinations would include mutual agreement of the parties, resubmission to the Arbitrator, or submission to arbitration before another arbitrator. See GSA, 37 FLRA at 488-89.

VI. Decision

The award is modified in accordance with this decision by striking the Arbitrator's sustaining of the grievants' claims for night differential pay for work performed at the work site and overtime compensation for time spent in traveling between their residence and their work stations and by vacating the Arbitrator's denial of overtime compensation for responding to telephone calls at home.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency also requested a stay of the award when it filed its exceptions with the Authority on May 8, 1989. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards. 51 Fed. Reg. 45754. Accordingly, no action on the stay request was taken.

2. Section 5542 alone governs this case because it is not contended or apparent that the grievants are covered by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

3. The Arbitrator did not order the payment of NPD for this travel. Accordingly, although the Arbitrator does not specifically address his resolution of these claims and neither party addresses this issue in its exceptions, we view the award as denying the grievants' claims for NPD. We note that because such travel time does not constitute hours of work, NPD is not payabl