39:0773(67)NG - - AFGE, Council of Marine Corps Locals (c-240) and Navy, Marine Corps, Washington, DC - - 1991 FLRAdec NG - - v39 p773



[ v39 p773 ]
39:0773(67)NG
The decision of the Authority follows:


39 FLRA No. 67

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF MARINE CORPS LOCALS (C-240)

(UNION)

and

U.S. DEPARTMENT OF THE NAVY

UNITED STATES MARINE CORPS

WASHINGTON, D.C.

(AGENCY)

0-NG-1828

DECISION AND ORDER ON NEGOTIABILITY ISSUE

February 22, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The dispute concerns the negotiability of a single proposal that would prevent the employer from requiring employees to wear and respond to beepers unless they are in a pay status. For the following reasons, we find that the proposal is negotiable.

II. Proposal

Beepers. Employees will not be required to carry or respond to "beepers" unless they are in a duty and pay status.

III. Positions of the Parties

A. The Agency

The Agency argues first that the proposal is outside the duty to bargain because the proposal is inconsistent with 5 C.F.R. º 551.431, an applicable Government-wide regulation. The Agency asserts that the cited regulation does not permit an Agency to place employees in a pay status simply because they are assigned and must respond to beepers for purposes of call-back duty. The Agency contends that its position is supported by Comptroller General and court decisions.

In addition, the Agency argues that the proposal is inconsistent with it right under section 7106(a)(2)(A) of the Statute to direct employees. The Agency contends that by barring the Agency from requiring employees to carry and respond to beepers, the proposal limits the Agency's ability to contact employees for the purpose of call-back overtime. The Agency argues that if employees are unavailable or refuse to respond to a beeper, the Agency is precluded from recalling employees to work. According to the Agency, the proposal "places the [A]gency in an untenable situation; it would require that employees be paid for carrying 'beepers' (which is illegal), and prevent their use in a non-pay status (which interferes with management's ability to recall employees)." Statement of Position at 5. Thus, the Agency concludes that the proposal directly interferes with its right under section 7106(a)(2)(A) to direct employees.

The Agency also argues that the proposal is inconsistent with its right under section 7106(a)(2)(B) of the Statute to assign work. The Agency claims that because the proposal provides that employees must be in a duty status in order to be required to wear and respond to beepers, the "net effect of the proposal is that employees can only be recalled to work if they are already at work." Id. at 6. The Agency contends that "[s]ince the [A]gency's need is to be able to recall workers from a non-duty status, the proposal interferes with management's right to assign work . . . ." Id.

Further, the Agency contends that the proposal implicitly interferes with its right under section 7106(a)(2)(A) to discipline employees. The Agency argues that although the proposal does not expressly address whether employees may be disciplined for failure to respond to a recall order, the clear intent of the proposal is to preclude the Agency from disciplining employees who do not respond to a beeper. The Agency claims that "[i]f management were to agree that employees need not carry or respond to a 'beeper' while in a non-pay status, . . ." the Agency could not sustain a disciplinary action based on a failure to respond to a recall. Id. at 9. Consequently, the Agency claims that the proposal interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute.

Finally, the Agency asserts that the proposal interferes with its right under section 7106(b)(1) to determine the technology, methods and means of performing work. The Agency contends that the use of beepers is a means of performing work, within the meaning of section 7106(b)(1) of the Statute. According to the Agency, beepers are used "as a means of dealing with fluctuating workloads and short deadlines. . . . [which] maximizes operational efficiency by enabling the [A]gency to bring to bear additional personnel resources in a short time frame to deal with unexpected workload demands." Id. at 10. The Agency argues, however, that the "proposal would totally frustrate the purpose of using a pager. . . . [because] [m]anagement does not need a 'beeper' to locate an employee if the person is on-site in a duty status." Id. at 10-11.

B. The Union

The Union notes that the bargaining unit contains both wage grade (WG or prevailing rate) and General Schedule (GS) employees and that although some employees are exempt from the Fair Labor Standards Act (FLSA), a large number of the WG employees are covered by the FLSA. The Union also notes that some unit employees currently are required to wear beepers while in an off-duty status. According to the Union, beepers are electronic signalling devices used by the Agency to contact off-duty employees who are not near a telephone and that when a signal broadcast from a radio transmitter is received by a beeper the employee is required to go to a telephone and call a prearranged number. The Union maintains that because these employees must remain within a certain mile radius of the employer's transmitter, and within a certain time and distance from the place of work, they "may be considered 'waiting to be engaged.'" Reply Brief at 2.

The Union contends that its "proposal is intended to protect employees who are in a non-duty status and during their personal time from being ordered to do the work of the [A]gency." Id. at 1. The Union claims that the proposal "does not require payment for employees who are assigned beepers but, rather, would allow the assignment to employees to carry beepers while already on duty." Id. Further, according to the Union, the proposal "places a limit on the employer's ability to subject employees to its orders without paying compensation[] [and] is intended only to preclude the assignment of a beeper in circumstances when the employee is not at work and in a non-pay status." Id. at 2.

The Union disputes the Agency's claim that the proposal is inconsistent with a Government-wide regulation. Rather, the Union argues that "[n]othing in the proposal requires, suggests, or even mentions what type of duty status or pay status the [A]gency may decide to place an employee into in order to be paid. The proposal merely presents a condition precedent to ordering an employee to carry (and implicitly respond to) a beeper." Id. at 4. Further, the Union maintains that as the proposal does not dictate what pay status the employee should be placed in, "the question of what constitutes work under Title 5, or the Fair Labor Standards Act, is simply irrelevant . . . ." Id. at 6.

The Union also contends that nothing in the proposal prevents the Agency from placing employees in a standby status or from assigning or directing employees to carry beepers. The Union states further that "[t]he proposal does not interfere with the employer's unfettered discretion or with the ability of the [A]gency to identify the particular employees required to carry a beeper or to perform any other assignment." Id. at 8-9.

The Union asserts that the "underlying question" in this case is "whether 'management rights' . . . reach into non-work time." Id. at 10. Citing American Federation of Government Employees, Local 1170 and Department of Health, Education, and Welfare, Public Health Service Hospital, Seattle, Washington, 5 FLRC 570 (1977), the Union argues that because the Federal Labor Relations Council construed the management rights clause of Executive Order 11941 narrowly, the Authority similarly should construe the management rights clause of the Statute.

Finally, the Union concludes that the proposal is negotiable because it does not require or prevent the Agency from assigning employees to carry beepers when they are in a duty status or in placing employees in a duty status in order to have them carry beepers. According to the Union, the proposal "merely requires that employees are in some sort of paid (duty) status" when they are required to carry beepers. Id. at 15.

IV. Analysis and Conclusions

For the reasons that follow, we find that the proposal does not conflict with 5 C.F.R. º 551.431 or with the Agency's rights under: (1) section 7106(a)(2)(A) of the Statute to direct and discipline employees; (2) section 7106(a)(2)(B) of the Statute to assign work; or (3) section 7106(b)(1) of the Statute to determine the technology, methods and means of performing work.

As indicated by the Union, the bargaining unit includes both GS and WG employees. Non-supervisory WG employees are covered by the FLSA. See, for example, Federal Personnel Manual (FPM) letter 551-7. Non-supervisory GS employees, however, may be excluded from coverage of the FLSA based on the nature of the duties of their positions. Id. Nothing in the record before us indicates whether the proposal applies to employees covered by the FLSA, employees excluded from coverage under the FLSA, or both. We note, however, that the Agency relied solely on 5 C.F.R. º 551.431 to support its claim that the proposal is inconsistent with an applicable Government-wide regulation. See Statement of Position at 2-4. 5 C.F.R. º 551.431 applies only to employees covered by the FLSA. See 5 C.F.R. º 551.101. Consequently, as the Agency relies on a Government-wide regulation that applies only to employees covered by the FLSA, we assume for the purposes of this decision that the employees involved are WG and GS employees covered by the FLSA.

1. The Proposal Does Not Conflict With 5 C.F.R. º 551.431

For WG and GS employees who are covered by the FLSA, 5 C.F.R. º 551.431 establishes criteria for determining when time spent in standby or in an on-call status is considered hours of work under the FLSA as follows:

º 551.431 Time spent on standby duty or in an on-call status.

(a) An employee will be considered on duty and time spent on standby duty shall be considered hours of work if:

(1) The employee is restricted to an agency's premises, or so close thereto that the employee cannot use the time effectively for his or her own purposes; or

(2) The employee, although not restricted to the agency's premises:

(i) Is restricted to his or her living quarters or designated post of duty;

(ii) Has his or her activities substantially limited; and

(iii) Is required to remain in a state of readiness to perform work.

(b) An employee will be considered off duty and time spent in an on-call status shall not be considered hours of work if:

(1) The employee is allowed to leave a telephone number or to carry an electronic device for the purpose of being contacted, even though the employee is required to remain within a reasonable call-back radius; or

(2) The employee is allowed to make arrangements such that any work which may arise during the on-call period will be performed by another person.

We note that 5 C.F.R. º 551.431 distinguishes standby status (paid) from on-call status (non-paid) based on the extent to which an employee's freedom of movement and activity are restricted and not on whether the employee is required or permitted to carry an electronic paging device or beeper. It is also clear, however, that 5 C.F.R. º 551.431 prohibits payment to an employee who is placed in an on-call status even if the employee is required to carry a beeper and remain within a reasonable call-back mileage radius from the activity.

In other words, under 5 C.F.R. º 551.431 an agency has discretion to place employees in a standby (paid) or on-call (non-paid) status. In order to be in a standby (paid) status under 5 C.F.R. º 551.431, an employee must either be restricted to an agency's premises (or close thereto) or, as relevant here, be restricted to his or her living quarters or designated post of duty, have his or her activities substantially limited, and be in a state of readiness to perform work. We also note, however, that nothing in 5 C.F.R. º 551.431 precludes an agency from requiring employees to carry beepers during their regular duty hours or while they are in a standby status within the meaning of 5 C.F.R. º 551.431. Thus, if an employee is placed in a standby status, as defined by 5 C.F.R. º 551.431, the fact that the employee is permitted or required to carry and respond to a beeper does not thereby change the employee's status from standby (paid) to on-call (non-paid). On the other hand, if an employee is placed in an on-call (non-paid) status within the meaning of 5 C.F.R. º 551.431, that is, where the employee's freedom of movement and activity are not substantially restricted, and the employee is not expected to remain in a state of readiness to perform work, the fact that the employee is required to carry a beeper and remain within a reasonable call-back mileage radius from the activity does not thereby change the employee's status from on-call (non-paid) to standby (paid). In fact, as stated previously, under 5 C.F.R. º 551.431 an employee in an on-call status may not be paid regardless of whether the employee must carry and respond to a beeper.

Contrary to the Agency's claim, we find that nothing in the Union's proposal requires the Agency to pay employees merely for carrying and responding to beepers. Instead, the proposal concerns only the circumstances in which the Agency may require the use of beepers. Moreover, even assuming that this proposal obligates the Agency to exercise its discretion to place an employee in a standby status whenever the Agency requires the employee to carry and respond to a beeper, that obligation is not inconsistent with 5 C.F.R. º 551.431. That is, an employee placed in standby status within the meaning of 5 C.F.R. º 551.431 is entitled to be paid for such standby duty because the employee's activities are substantially limited, and because the employee must remain in a state of readiness to perform work, not because the employee is required to carry and respond to a beeper.

Finally, as nothing in 5 C.F.R. º 551.431 precludes an agency from exercising its discretion to place employees required to carry and respond to beepers in a standby instead of an on-call status, we reject the Agency's contention that the proposal requires the Agency to pay employees solely for carrying and responding to beepers. Consequently, we conclude that the Agency has not established that the proposal is inconsistent with 5 C.F.R. º 551.431.

2. The Proposal Does Not Interfere With the Agency's Rights to Direct and Discipline Employees, to Assign Work, or to Determine the Technology, Methods and Means of Performing Work

The right to direct employees means the right to supervise and guide employees in the performance of their duties on the job. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Mid-America Program Service Center, Kansas City, Missouri, 33 FLRA 454, 461 (1988). The proposal, however, does not concern the supervision and guidance of employees in the performance of their duties on the job. Instead, the proposal concerns the pay status of employees who are required to carry beepers. Consequently, the proposal does not directly interfere with management's right under section 7106(a)(2)(A) of the Statute to supervise and guide employees in the performance of their duties on the job.

Further, nothing in this proposal prohibits the Agency from directing employees to carry and respond to beepers. As we concluded previously, nothing in 5 C.F.R. º 551.431 precludes the use of beepers by employees who are in a paid status. In fact, if an agency's facilities are widely dispersed geographically, the use of beepers may be the only effective way an agency can communicate with employees when they are on the job. Similarly, if an employee on standby lacks a phone or the employee's phone is inoperative or constantly in use by other family members, the use of a beeper may be the only effective way to notify that employee of a recall order. Although the proposal precludes the use of beepers by employees who are off duty in a non-paid status, the Agency retains the discretion under this proposal to place employees in a paid status, and to require those employees to carry and respond to beepers. Consequently, the proposal does not directly interfere with the Agency's right under section 7106(a)(2)(A) of the Statute to direct employees.

The proposal also does not directly interfere with the Agency's rights to assign work and discipline employees. We note first that the Agency's claim that the proposal interferes with its right to assign work is based on its view that the proposal would prevent it from augmenting its workforce by recalling employees to work. Contrary to the Agency's position, however, the proposal does not prevent the Agency from recalling employees to work. The proposal concerns only the pay status of employees who are required to carry beepers. In other words, if the Agency chooses to require employees to carry beepers, the requirement to carry and respond to beepers is conditioned on placing the employee in a paid status. The Agency has not demonstrated, and it is not otherwise apparent, that its rights to assign work and discipline employees encompass the right to require employees who are in an on-call (non-duty, non-pay) status, to carry and respond to beepers. See U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Hyattsville, Maryland and National Association of Agriculture Employees, 38 FLRA 1291, 1294-95 (1991) (award rescinding suspension given for grievant's failure to perform duty assignment while in a non-duty, non-pay status was not deficient as interfering with agency's right to assign work).

We also reject the Agency's argument that "[t]he net effect of the proposal is that employees can only be recalled to work if they are already at work." Statement of Position at 6. Even assuming, as claimed by the Agency, that the proposal requires the Agency to place employees in a standby status, we note that 5 C.F.R. º 551.431 provides that employees may serve in a standby status in their residences so long as their activities and freedom of movement are substantially restricted and so long as the employee remains in a state of readiness to perform work. Obviously, employees serving standby in their residences are not already at work. Moreover, we note that nothing in the proposal permits an employee to fail or refuse to respond to a recall order regardless of whether the employee is notified by telephone or by use of a beeper. Thus, as the proposal does not insulate employees from the obligation to return to work pursuant to a recall order, the proposal does not prevent the Agency from disciplining employees who fail or refuse to respond to a recall order however received.

Consequently, we conclude that the proposal does not directly interfere with the Agency's right under section 7106(a)(2)(B) to assign work or with the Agency's right under section 7106(a)(2)(A) to discipline employees.

Finally, we reject the Agency's claim that the proposal interferes with its right to determine the technology, methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. Even assuming that the requirement to carry and respond to a beeper bears a technological relationship to accomplishing or furthering the performance of the Agency's work, nothing in the proposal precludes the Agency from using beepers to recall employees to work. Rather, as stated previously, the proposal concerns only the pay status of employees who are required to carry beepers. In other words, if the Agency chooses to require employees to carry beepers, the requirement to carry and respond to beepers is conditioned on placing the employees in a paid status. As we noted previously, nothing in 5 C.F.R. º 551.431 precludes the use of beepers by employees who are in a standby status so long as the employees activities are substantially restricted and the employee remains in a state of readiness to perform work, as required by 5 C.F.R. º 551.431.

Consequently, we conclude that the Agency has not established that the proposal directly interferes with the Agency's right to determine the technology, methods and means of performing work within the meaning of section 7106(b)(1) of the Statute.

V. Summary

In sum, we conclude that the Agency has not established that the proposal is inconsistent with 5 C.F.R. º 551.431 or that the proposal directly interferes with the Agency's rights under: (1) section 7106(a)(2)(A) of the Statute to