44:0343(28)AR - - Justice, INS, Washington, DC and AFGE National Immigration and Naturalization Council - - 1992 FLRAdec AR - - v44 p343



[ v44 p343 ]
44:0343(28)AR
The decision of the Authority follows:


44 FLRA No. 28

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

WASHINGTON, D.C.

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL IMMIGRATION AND NATURALIZATION COUNCIL

(Union)

0-AR-1983

DECISION

March 12, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator M. Bernard Keisler filed by the Agency 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 filed an opposition to the Agency's exceptions.

A grievance was filed by the Union contesting the denial of overtime for employees detailed to the Federal Correctional Facility at Lewisburg, Pennsylvania. The Arbitrator sustained the grievance and found that the grievants were entitled to premium pay for standby duty pursuant to 5 C.F.R. §§ 550.141 and 550.142.

For the following reasons, we conclude that the award does not satisfy the requirements governing standby pay and must be set aside.

II. Background and Arbitrator's Award

The grievants are employed by the U.S. Immigration and Naturalization Service as deportation officers in the New York City district office. In late 1987 or early 1988, they were detailed to the Bureau of Prisons' Correctional Facility at Lewisburg, Pennsylvania, to serve as liaison officers, on rotating 30-day tours of duty. They were assigned to assist prison officials with foreign detainees who had been transferred from other facilities.

The Agency notified the Bureau of Prisons that the liaison officers were expected to work normal shifts but to be on-call during off-duty hours, including holidays. The Arbitrator found that the employees worked from 8:00 a.m. to 4:00 p.m., Monday through Friday, and were not required to remain at the prison at the completion of their normal tour of duty. The employees were housed in a local motel and were provided rental automobiles, which were restricted to in-state use. The Arbitrator found that although the employees were not permitted to return to their homes, the employees were not restricted in terms of various activities, such as obtaining meals, doing laundry and shopping and were not required to carry beepers or provide phone numbers where they could be reached. The Arbitrator also noted that some of the grievants, while away from their motel, contacted the motel to inquire as to whether any calls had been received from the correctional facility.

Sometime prior to October 1988, the grievants filed claims with the Agency for overtime compensation and/or compensatory time under the Federal Employees' Pay Act of 1945, as amended. The grievants claimed that they had been on standby duty and, as such, were entitled to overtime pay. The Agency denied the claims on the basis that the grievants were not in a standby status and were not eligible for premium pay. The Agency also rejected the claims for compensatory time.

After the grievants filed their claims, but before the instant grievance was filed, the Agency notified the Bureau of Prisons that employees detailed as liaison officers were not required to work on weekends unless specifically requested to do so. At this same time, the restriction on in-state use of rental automobiles was eliminated, and the grievants were permitted to return home and to work overtime on weekends at their permanent duty stations, if scheduled.

The Union grieved the denial of overtime compensation. The matter was unresolved and proceeded to arbitration. At arbitration, the parties stipulated the issue to be resolved as follows: "Did the agency violate the negotiated Agreement in denying overtime and/or compensatory time to the Grievants? If so, what shall the remedy be?" Award at 8.

Before the Arbitrator, the Union argued that the grievants were in a standby status and were entitled to compensation under 5 C.F.R. § 551.431.(1) The Union asserted that, while not on duty, the grievants were required to stay at or near their motel, thereby qualifying the motel as part of their duty station. The Union also asserted that the notices sent by the Agency to the Bureau of Prisons authorized the grievants to work overtime in a standby status. The Union stated that, although the notices provided that liaison officers would be in an on-call status, the grievants were not, in fact, in an on-call status because they were not required to carry beepers or leave phone numbers where they could be reached. Rather, the Union argued that the grievants were in a standby status, ready to assist prison officials at a moment's notice. Finally, the Union maintained that the grievants were improperly denied the opportunity to work overtime at their permanent duty stations because of the restrictions placed on their ability to leave the site of the Lewisburg detail. As a remedy, the Union requested that employees be compensated, in money or time, for all hours spent in a standby status while on detail in Lewisburg. Alternatively, the Union requested that employees be compensated for all lost overtime at their permanent duty stations.

The Agency argued that the provisions of 5 C.F.R. § 551.431 do not apply because the grievants are exempt from the FLSA. Instead, the Agency asserted that the grievants' claims would have to be adjudicated under 5 C.F.R. §§ 550.141 and 550.143.(2) Applying these provisions, the Agency argued that the grievants were not in a standby status and were not entitled to compensation on that basis. The Agency also argued that there are differences between standby status and on-call status and that the grievants were technically in an on-call status. However, the Agency noted that none of the grievants actually was called back to perform work.

The Arbitrator noted initially that the issue of whether the grievants are exempt from the FLSA was not before him. He further noted the Agency's statement that the regulations contained in 5 C.F.R. §§ 550.143 and 551.431 are essentially the same and then determined that the language of both sections must be applied in this case. Looking first to 5 C.F.R. § 551.431, the Arbitrator found that the grievants were restricted to their designated post of duty, which he defined as the grievants' living quarters and the immediate Lewisburg vicinity; the restrictions and denial of an opportunity to return home on the weekends constituted a substantial limitation; and the grievants remained in a state of readiness to perform work. Thus, the Arbitrator concluded, based on the criteria set forth in 5 C.F.R. § 551.431, that the grievants met the regulatory requirements for standby duty pay.

The Arbitrator then addressed the applicability of 5 C.F.R. § 550.143 and found that the grievants satisfied the conditions set forth therein for being awarded standby pay. Specifically, the Arbitrator found that the grievants were regularly at their living quarters provided by the Agency; their "whereabouts" were narrowly limited; and their activities were substantially limited, particularly on the weekends. Award at 23. The Arbitrator also found that even though the initial notices from the Agency to the Bureau of Prisons indicated that the grievants were to be "on call," the evidence, including testimony from Agency witnesses, established that the grievants had been placed in a standby status. Additionally, the Arbitrator found that these notices "constituted a 'definite order' to remain at one's station . . . ." Id. at 22.

Finally, the Arbitrator considered and rejected the Union's request that, in lieu of compensation for time spent in a standy status, the Agency compensate the grievants for the lost overtime they would have earned had they been permitted to return home on weekends.(3) As his award, the Arbitrator sustained the grievance and directed the Agency to compensate the grievants pursuant to 5 C.F.R. §§ 550.141 and 550.142 for standby duty while on detail to the Federal Correctional Facility at Lewisburg, Pennsylvania.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the award is deficient because it is contrary to law, rule, or regulation and because it is based on a nonfact.

First, the Agency asserts that the award is contrary to 5 U.S.C. § 5545(c) and 5 C.F.R. §§ 550.141-143 and 550.161.(4) The Agency claims that the regulatory authority for standby pay relied on by the Arbitrator, namely, 5 C.F.R. §§ 550.141 and 550.142, is derived from 5 U.S.C. § 5545(c)(1).(5) According to the Agency, the latter authorizes agency heads, with approval from the Office of Personnel Management (OPM), to establish an annualized pay system for compensating employees who are on regularly scheduled standby duty. The Agency cites several decisions of the United States Claims Court to support the proposition that employees claiming premium pay under 5 U.S.C. § 5545(c)(1) must establish that their employing agencies have an annualized standby overtime pay system in place. The Agency states that there was no finding by the Arbitrator that such a system exists for the positions occupied by the grievants and, further, that job categories cannot be added to an annualized pay system retroactively.(6) Consequently, the Agency argues that it could not lawfully be required to pay the grievants under 5 U.S.C. § 5545(c)(1) and its implementing regulations, 5 C.F.R. §§ 550.141-143.

Also in connection with this argument, the Agency contends that the regulatory provisions contained in 5 C.F.R. §§ 550.141-143 authorize agency heads to establish annualized standby pay systems only "'over the full cycle of the employee's duties and the full range of conditions in his position.'" Exceptions at 12-13, quoting 5 C.F.R. § 550.142(a). The Agency argues that 30-day details do not satisfy the requirements attendant to an annualized pay system.

Next, the Agency argues that even assuming the FLSA or 5 U.S.C. § 5545(c)(1) were applicable, the facts presented do not establish that the grievants were required to perform standby duties. The Agency points out that even though the grievants are exempt from the FLSA, the legal and regulatory requirements for standby duty pay set forth in 5 C.F.R. § 551.431(a)(2) define the grievants' eligibility for standby pay. In this regard, the Agency notes that a finding that an employee is in a standby status is predicated on the employee being restricted to living quarters or the designated post of duty, having substantially limited activities, and being required to remain in a state of readiness to perform work. The Agency states that the Arbitrator found to the contrary, namely that the grievants were free to leave the motel, and were not required to carry beepers or leave a phone number where they could be reached. The Agency also maintains that even if it could be argued that the grievants were restricted to their living quarters, there is no evidence that their activities were substantially limited or that they were required to remain in a state of readiness to perform work.

The Agency also disputes the Arbitrator's determination that the grievants' post of duty was comprised of their living quarters and the immediate Lewisburg vicinity. The Agency argues that the Arbitrator's definition of post of duty is more expansive than that contemplated by the regulations. Additionally, the Agency argues that under 5 C.F.R. § 551.431(a)(1), the Arbitrator erroneously concluded that the grievants' motel rooms constituted the Agency's premises. The Agency states "to the extent the award may be seen as turning on this conclusion, it must be reversed." Exceptions at 18.

The Agency further contends that, for the same reasons the grievants were not entitled to standby pay under 5 U.S.C. § 5545(c)(1), the grievants would not have been entitled to premium pay under 5 U.S.C. § 5542(a), had that section been invoked by the grievants and the Arbitrator. The Agency acknowledges that the regulations defining standby duty for purposes of 5 U.S.C. § 5542 "are the same as those which define it for purposes of 5 U.S.C., section 5545(c)(1), i.e., 5 CFR section 550.141-143" and that employees performing standby duty may be entitled to overtime pay under 5 U.S.C. § 5542(a). Exceptions at 40. The Agency argues, however, that no overtime was officially ordered or approved and that there is no evidence that overtime was allowed to be performed by the grievants with the knowledge of supervisory personnel.

The Agency also argues, alternatively, that the award violates 5 U.S.C. § 5543(a) and 5 C.F.R. § 550.114(b). The Agency asserts that, under these provisions, the Agency head has the option of giving employees whose rates of pay exceed the maximum rate for the GS-10 level compensatory time in lieu of overtime. The Agency argues that if the award is not otherwise found deficient, the remedy would have to be amended to "eliminate the requirement of back pay for all of the Grievants who are GS-11s and give the [Agency] the option of granting the Grievants compensatory time." Id. at 44.

Finally, the Agency asserts that the award is deficient because it is based on a nonfact. The Agency claims that the Arbitrator made inconsistent factual findings with respect to whether the grievants' activities were restricted. The Agency notes that the Arbitrator found that the grievants were required to remain in their motel rooms while off-duty in one portion of his award, but also found, in another portion of the award, that the grievants left their rooms, at their discretion, for meals, shopping and other activities. The Agency maintains that if the Authority concludes that the award was predicated on a finding that the grievants' activities were restricted, the award is based on a nonfact and is deficient.

B. Union's Opposition

Initially, the Union contends that the Agency is attempting to raise new issues before the Authority that were not previously raised in the arbitration proceeding. Specifically, the Union asserts that the Agency did not discuss the absence of an OPM-approved premium pay plan covering the grievants and also that neither party made the grievants' FLSA status an issue during the arbitration hearing.

With regard to the Arbitrator's finding that the grievants were entitled to standby pay, the Union contends that the Arbitrator clearly found that the grievants met the regulatory requirements for standby duty pay regardless of whether the standards of §§ 550.141-143 or 551.431 are applied. The Union maintains that the Arbitrator made an uncontested finding that the Agency ordered the grievants to remain at their station. The Union also contends that the grievants were induced into working overtime and were induced into believing that they were required to remain in Lewisburg on the weekends.

Additionally, in opposition to the Agency's exception that the award is based on a nonfact, the Union argues that the Arbitrator's findings are not contradictory. The Union asserts that substantial limitations on activities are not absolute limitations and that the Arbitrator's finding that the grievants had some discretion in their movements does not contradict the finding that the grievants were required to be readily available to return to work.

Finally, the Union asserts that the determination of an applicable remedy is best left to the Arbitrator and that the Arbitrator fashioned a remedy awarding standby duty pay. The Union disputes the Agency's contention that the remedy should be amended to allow the Agency to award compensatory time. The Union argues that this remedy was suggested by the Union and rejected by the Agency before the Arbitrator and that the Agency should not be permitted to reopen the record on this basis.

IV. Analysis and Conclusions

We will find an arbitration award deficient under section 7122(a) of the Statute if the award is contrary to any law, rule, or regulation or on other grounds similar to those applied by Federal courts in private sector labor relations cases. American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 41 FLRA 1409 (1991). For the following reasons, we find that the award is inconsistent with the regulatory requirements governing standby pay and must be set aside.

Initially, we note that compensation for time spent in a standby status is not restricted only to the provisions contained in 5 U.S.C. § 5545(c)(1). That statutory authority permits agencies to pay premium pay up to 25 percent of employees' base pay on an annual basis, instead of overtime compensation, to employees for regularly scheduled duty spent on standby status. See for example, U.S. Department of the Army, Army Medical Activity, Fort Knox, Kentucky and American Federation of Government Employees, Local 2302, 43 FLRA 102, 113-14 (1991) petition for review filed sub nom. American Federation of Government Employees, Local 2302 v. FLRA, No. 92-3031 (6th Cir. Jan. 9, 1992). The Agency concedes, as to the grievants in this case, that 5 U.S.C. § 5542(a) also provides a basis for compensation for time spent in a standby status. Therefore, we reject the Agency's assertion that the award is deficient because the requisite authorization and approval for standby pay under 5 U.S.C. § 5545(c)(1) did not exist to warrant an award of compensation.

Previously, in Naval Amphibious Base, Little Creek, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 445 (1984) (Naval Amphibious Base), the Authority noted that standby time, which is compensable as hours of work under 5 U.S.C. § 5542(a), is defined in Federal Personnel Management (FPM) Supplement 990-2, Book 610, subchapter S1-3d. That section provides, in relevant part, that

Standby time consists of periods in which an employee is officially ordered to remain at or within the confines of his station, not performing actual work but holding himself in readiness to perform actual work when the need arises or when called.

The Arbitrator did not specifically address this regulatory provision or the appropriate statutory authorization for standby pay. Instead, the Arbitrator examined the provisions contained in 5 C.F.R. § 551.431, governing standby pay under the FLSA, and 5 C.F.R. § 550.141-143, essentially governing non-FLSA standby pay.(7) Although the Arbitrator applied each set of regulations, he ultimately awarded compensation based on the non-FLSA regulations. Consequently, we will examine the sufficiency of the award in the context of the non-FLSA regulations.

The requirement that employees be officially ordered to remain at their stations and hold themselves in readiness to perform work, for purposes of defining hours of work as set forth above, is also contained in 5 C.F.R. § 550.143 for purposes of pay administration. The Arbitrator applied section 550.143(b)(2) to find that the grievants "were 'regularly at' the living quarters provided by the Agency." Award at 23. However, the Arbitrator did not make a definitive finding that the grievants met the requirement to "stand by in readiness to perform actual work when the need arises or when called." 5 C.F.R. § 550.143(b)(2).(8) In this connection, the Arbitrator found that "[s]ince no specific instructions were outlined to the Grievants, it had to be assumed that it was understood by both parties that the Grievants . . . could be readily reached at their living quarters, while in a state of readiness to return to work." Award at 24. The only other finding made by the Arbitrator with respect to the requirement that employees stand by in readiness to perform work was based on the grievant's testimony that "mentally they were alerted to be called back to their work state at any time." Id. at 20. In our view, these findings do not support the conclusion that the grievants were required to stand by in readiness to perform actual work. The Arbitrator's finding that the notices from the Agency to the Bureau of Prisons pertaining to the details "constituted a 'definite order' to remain at one's station," do not compel a different conclusion. Award at 22. Those notices did not refer to standby or require employees to be in a state of readiness.

This case is similar, in many respects, to situations previously addressed by the Authority in which claims for standby duty pay were denied. In Naval Amphibious Base, for example, the Authority reversed an arbitrator's award that had ordered standby pay under 5 U.S.C. § 5542 to an employee who was assigned to perform repair work on an isolated island. The Authority rejected the arbitrator's finding that the employee was on standby because he was confined to the island after completing his work and, thereby, was compelled to hold himself in readiness to perform additional work. The Authority found that the employee had not been officially ordered or required to be on standby or to hold himself in readiness to perform additional work and, further, that standby status does not result solely from geographic isolation. In reaching its decision, the Authority also cited an earlier case adopting an administrative law judge's finding that an agency was not obligated to bargain over the decision to change a practice of paying overtime to employees who were stranded offshore overnight where the employees were not required to hold themselves in readiness to perform work in a standby status. The Authority agreed with the judge's finding that there was no obligation to bargain over the decision to change the practice because the change was effected to conform with the legal and regulatory requirements governing overtime pay. Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana and American Federation of Government Employees, Local 3457, AFL-CIO, 9 FLRA 543 (1982).

In addition, both the United States Claims Court and the Comptroller General have refused to sustain claims of compensation for time assertedly spent on standby duty in circumstances that were more restrictive than are present here in terms of various limitations imposed on employees. For example, in Aldridge v. United States, 479 F.2d 1365 (Ct. Cl. 1973), the court held that civilian policemen employed by the U.S. Government in the Panama Canal Zone who, during a period of unrest, were restricted in their off-duty hours to a particular area and were required to remain at their quarters or at some place within the area where they could be reached by telephone, were not on standby duty during such time. The court noted that the employees had not been ordered to remain in their regular duty station or living quarters and were free to go anywhere during their off-duty time as long as they remained in the particular area and maintained telephone contact.

Similarly, in 57 Comp. Gen. 496, the Comptroller General held that an employee who was required to remain overnight at a remote radar site was not in a standby status, noting the absence of evidence that employees at the facility were required to hold themselves in a state of readiness to perform work during nonduty hours. The Comptroller General stated that the regulations authorizing compensation for time spent in a standby status apply when an employee is required to hold himself in a state of readiness to perform work and not when there is a "mere restriction of an employee to his worksite outside of duty hours . . . ." Id. at 499. The Comptroller General also distinguished the case from a situation in which employees of the same agency who were required to remain overnight at a remote facility were found to be in a compensable standby duty status. B-170264 (unpublished) (December 21, 1973). The Comptroller General found, in the latter case, that the facility did not have on-duty coverage for 24 hours per day and that the employees were required to hold themselves in readiness to perform work in order to provide needed coverage. By contrast, there was 24-hour on-duty coverage in the former case and, as noted, the employees were not required to hold themselves in a state of readiness.

In the instant case, as we stated above, the Arbitrator's finding that the employees were in a state of readiness does not comport with the applicable legal and regulatory requirements governing standby pay. There is no evidence, for example, that round-the-clock coverage by the grievants was needed at the prison facility and no evidence that the Agency required the grievants to remain in a state of readiness. Under such circumstances, we find that the grievants were not entitled to standby pay under 5 U.S.C. § 5542(a). Accordingly, the Arbitrator's award of compensation is deficient and will be set aside. In light of this conclusion, it is unnecessary to address the Agency's exceptions further.

V. Decision

The award is set aside.




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

1. 5 C.F.R. Part 551 pertains to pay administration under the Fair Labor Standards Act (FLSA). Section 551.431 governs time spent either on standby duty or in an on-call status.

2. 5 C.F.R. Part 550 governs general pay administration. Sections 550.141 and 550.143 relate, respectively, to authorization for premium pay on an annual basis and the determination of positions eligible for such premium pay. Additionally, 5 C.F.R. § 550.142, referenced below, contains general restrictions on premium pay.

3. Neither party filed an exception to the Arbitrator's finding in this regard. We will not consider it further.

4. The Agency also referred to 5 C.F.R. § 550.144, at page 2 of its exceptions, but made no additional reference to that section or arguments as to its applicability. Under these circumstances, we will not address that section further.

5. 5 U.S.C. § 5545(c)(1) provides, in relevant part:

(c) The head of an agency, with the approval of the Office of Personnel Management, may provide that--

(1) an employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour.

6. 5 C.F.R. § 550.161 states, in part, that determinations as to employee eligibility for premium pay under 5 U.S.C. § 5545(c)(1) may not be retroactive.

7. The regulatory provisions contained in 5 C.F.R. § 550.141-143, which implement standby pay under 5 U.S.C. § 5545(c)(1), have been extended to standby pay under 5 U.S.C. § 5542(a). See, for example, B-170264 (December 21, 1973) (unpublished) (the definition of standby duty under 5 U.S.C. § 5545(c)(1) is equally controlling for purposes of interpreting 5 U.S.C. § 5542(a)). Accord, 57 Comp. Gen. 496 (1978); 52 Comp. Gen. 794 (1973).

8. 5 C.F.R. § 550.143(b)(2) provides as follows:

§ 550.143 Bases for determining positions for which premium pay under § 550.141 is authorized

. . . .

(b) The words "at, or within the confines, of his station", in § 550.141 mean one of the following: