45:1204(120)NG - - NFFE, Forest Service Council and Agriculture, Forest Service, Washington, DC - - 1992 FLRAdec NG - - v45 p1204
[ v45 p1204 ]
The decision of the Authority follows:
45 FLRA No. 120
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of several sections of a proposal pertaining to standby pay for employees assigned to a closed fire camp.1/ Fire camps are established as temporary headquarters in order to supervise fire suppression. The camps are closed when the management official in charge of a particular fire, typically designated as the Incident Commander, decides that closure is necessary to minimize disruption to the community located near the site of the fire camp.
For the following reasons, we conclude that the disputed sections of the proposal are inconsistent with 5 C.F.R. § 551.431(a)(2). Therefore, they are outside the duty to bargain under section 7117 of the Statute.
Closed Fire Camps --
12.5 - Off Shift Time. The degree of control the Forest Service exercises over regular Government and casual employees during off shift hours depends upon the urgency of the emergency situation.
1. Employees may be restricted to an incident base or any other camp only when the Incident Commander or other authorized management official requires their presence for work or to be in a state of readiness to perform work. This provision does not restrict management's right to take whatever actions are necessary to carry out the Agency mission during a bona fide emergency, with said actions being taken in accordance with applicable laws.
2. If employees are restricted to an incident base or any other camp during off shift periods, including during an emergency, this constitutes a substantial limitation on the employees' activities, placing them in a state of readiness, and serves to place the affected employees in stand-by [sic] status, except during bona fide sleep time.
The Line Officer or Incident Commander must assure that employees' rights to the following are preserved while off shift:
a. The right to freely exercise their religion.
b. The right to vote.
c. The right to attend political gatherings.
The Line Officer or Incident Commander shall clearly communicate a decision to close a camp to all employees, and shall document each decision and the rationale for it.
3. Time spent restricted to fire camp, mobilization centers and rest and recuperation facilities is compensable.
Ordered Standby --
12.3 - Ordered Standby. For all regular Government employees, hours of ordered standby (on-shift time) are compensable. Ordered standby demands careful attention to insure that compensation is paid where warranted and not paid when inappropriate. Adhere to the following guidelines:
1. Compensable standby shall be limited to those times when an employee is held, by direction or orders, in a specific location.
. . . .
3. Time spent in a staging area, mobilization or demobilization center, or other general areas where employees can rest, eat, pursue activities of a general nature and are free to leave the area is not compensable as ordered standby. Such time is compensable only to the extent needed to complete the guaranteed base hours.
[Only the underlined portions are in dispute.]
III. Positions of the Parties
The Agency contends that employees restricted to a closed fire camp are not entitled to standby pay unless they are in a state of readiness to perform work. According to the Agency, although employees are required to remain in a closed fire camp, they are free to use their off-duty time "effectively for their own purposes." Statement of Position at 7. In this regard, the Agency notes that it encourages employees to use their off-shift time for rest and recuperation "to facilitate their ability to fight fires when their on-shift begins." Id. The Agency argues that, to the extent the proposal authorizes standby pay based solely on the time spent at the fire camp, and without regard to whether employees are in a state of readiness to perform work, the proposal is inconsistent with 5 U.S.C. § 5542(a), Federal Personnel Manual Supplement 990-2, Book 610, S1-3d, and 5 C.F.R. § 551.431(a). In support of its position, the Agency cites various decisions of the Authority and the Comptroller General for the proposition that entitlement to standby pay requires that employees hold themselves in a state of readiness to perform work, that standby duty must be officially ordered or approved, and that standby status does not result solely from geographic restrictions or geographic isolation.
More specifically as to sections 12.5-2, 12.5-3, and 12.3-1 of the proposal, the Agency argues that "[s]tandby pay status does not result from geographic isolation[,]" and that "the Union is attempting to define entitlement to standby pay through geographic isolation rather than the status of their readiness to perform work and whether or not the employee has been ordered to be ready to perform work." Statement of Position at 9, 10. The Agency also argues that Section 12.3-3, by using the phrase "and are free to leave the area . . . again attempts to tie the definition of standby pay status to geographic location." Id. at 10.
The Agency further contends that the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. The Agency admits that providing standby pay to all employees assigned to a closed fire camp would be an arrangement. However, the Agency asserts that the proposal is not appropriate because the sections of the proposal "constitute a clear violation of the laws, regulations, and decisions of the Comptroller General regarding compensable time." Id. at 13. The Agency also argues that the proposal would excessively interfere with management's right under section 7106 of the Statute "to take whatever actions may be necessary to carry out the Agency mission during emergencies." Id. In support of this latter contention, the Agency argues that various factors determine whether the Incident Commander orders off-shift employees to be in a state of readiness, such as the size and complexity of a fire, weather conditions, and terrain, and that the determination is not based solely on whether the fire camp has been declared closed.
In its supplemental brief, the Agency responds to a constitutional claim raised by the Union. The Agency asserts that whether the restriction of employees to a closed fire camp violates their liberty interests under the Fifth and Fourteenth Amendments to the U.S. Constitution is not pertinent to the disposition of this case. However, with regard to the merits of the Union's claim, the Agency asserts that it has taken actions to ensure that closed fire camps do not infringe on employees' constitutional rights. Specifically, the Agency notes that section 12.5-2 of the proposal contains assurances of employees' rights during off-shift time to freely exercise their religion, to vote, and to attend political gatherings. The Agency maintains that "[t]here are no restrictions upon employees' right to exercise these freedoms. They may do so without notice to any official at the closed fire camp." Agency's Supplemental Brief at 7.
The Union argues that the Agency incorrectly interprets 5 C.F.R. § 551.431(a) as mandating that all of the requirements set forth therein be satisfied in order for employees to be entitled to standby pay.2/ The Union states that there are two separate sections contained in that regulation and that 5 C.F.R. § 551.431(a)(1) is applicable "when employees are restricted to the close confines of a closed fire camp." Response at 3. The Union further states that "[i]t cannot be argued that employees restricted to a closed fire camp are free to use his/her time effectively for his or her own purposes." Id. The Union acknowledges that employees are free to use their off-shift time, but argues that employees have nothing to do during such time "due to the restrictions of a closed fire camp and little or no recreational opportunity[.]" Id. at 2.
The Union disputes the Agency's contention that employees must hold themselves in a state of readiness in order to receive standby pay. The Union acknowledges "that employees are not required to hold themselves in a 'state of readiness' during their off-shift time at a closed fire camp." Id. However, the Union states that the "mere fact that an employee is restricted to a fire camp puts that employee in the position of 'holding himself in readiness to perform actual work'". Id. at 3. In addition, the Union notes that "[a]ll employees at fire camps are ready to perform work and when the need arises or when called, [are] 'fully outfitted' in less than 10 minutes." Id. Finally, the Union asserts that the Agency's arguments pertaining to geographic isolation have no bearing on the proposal because employees are not required to remain in an area due to its isolation. The Union states that the Agency closes a fire camp only when it is near a community, not when it is in an isolated location.
The Union also argues that the proposal constitutes an appropriate arrangement. The Union notes that, absent compensation for bargaining unit employees, the employees would be treated differently from other personnel, such as those employed by a state forestry agency who are paid on a 24-hour basis. The Union also argues that the proposal does not excessively interfere with the Agency's right to take whatever action is necessary for the Agency to carry out its mission during emergencies. The Union asserts that the proposal does not prevent the Agency from closing fire camps but only requires that employees be compensated when they are restricted to the fire camps.
Finally, the Union contends that closing fire camps without compensating employees violates the employees' constitutional rights under the Fifth and Fourteenth Amendments. The Union argues that the Agency has failed to show a compelling state interest that would justify an infringement of employees' liberty interests in being able to move from one place to another. The Union maintains that while the Agency retains the right to close fire camps, the resulting restriction on employees' mobility requires that the Agency compensate employees.
IV. Analysis and Conclusions
For the following reasons, we find that the disputed sections of the proposal are nonnegotiable because they are inconsistent with 5 C.F.R. § 551.431(a)(2).
The Union claims that this case is governed by the provisions of § 551.431(a)(1) and that bargaining unit employees who are restricted to the fire camps and cannot use their time effectively for their own purposes are entitled to standby pay. We disagree. The section of the regulation on which the Union relies addresses situations where employees are restricted to an agency's premises or so close thereto that employees cannot use the time effectively for their own purposes. The regulation does not define what is meant by the term "agency's premises." The Union cites no support for its view that a closed fire camp constitutes the Agency's premises within the meaning of the regulation. In fact, the Union notes that the proposal would apply to a variety of locations, including "Bear Creek, Alaska or Hyde Park, New York[.]" Response at 3.
In our view, it is more appropriate to address the availability of standby pay under the requirements of 5 C.F.R. § 551.431(a)(2). That section applies when employees are not restricted to an agency's premises but, as relevant here, are restricted to a designated post of duty. Recently, in National Federation of Federal Employees, Local 466 and U.S. Department of Agriculture, Forest Service Regional Office, Atlanta, Georgia, 45 FLRA No. 108, slip op. at 8 (1992), we noted that fire camps are established "away from employees' normal work locations[.]" Indeed, the record here demonstrates that fire camps are established at a variety of locations and do not all involve Federal lands. The Agency states, in this regard, that it cooperates with other Federal agencies and state and local governments to fight fires in national forests and grasslands as well as lands managed by states and other Federal agencies. Under these circumstances, we find that closed fire camps, which may be established in varying geographic locations, including lands that clearly could not be considered the Agency's premises, constitute designated posts of duty, and not the the Agency's premises.
Having reached this conclusion, we note that certain requirements set forth in § 551.431(a)(2) must be satisfied in order to entitle employees to standby pay. Among them is the requirement that employees remain in a state of readiness to perform work.3/ The Agency argues that employees assigned to a closed fire camp are not required to remain in a state of readiness and, instead, are encouraged to use their off-shift time for rest and recuperation. The Union concedes that "employees are not required to hold themselves in a 'state of readiness' during their off-shift time at a closed fire camp." Response at 2. Despite this concession, however, the Union argues that the restriction to the closed fire camp itself is sufficient to place employees in a state of readiness. The Union's argument is not persuasive.
If the restriction to an employee's post of duty were the sole determinant of entitlement to standby pay, the additional requirements of 5 C.F.R. § 551.431(a)(2), that employees remain in a state of readiness to perform work and that their activities be substantially limited, would be rendered meaningless. There is no basis on which to disregard these additional regulatory requirements and we decline to do so. Thus, in light of the Agency's contention that employees are not required to remain in a state of readiness to perform work and the Union's concession to that effect, we conclude that the disputed sections of the proposal are inconsistent with 5 C.F.R. § 551.431(a)(2). We further conclude that that regulation is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. See American Federation of Government Employees, Council of Marine Corps Locals (C-240) and U.S. Department of the Navy, United States Marine Corps, Washington, D.C., 39 FLRA 773, 777-79 (1991), enforced, 962 F.2d 1066 (1992) (for employees covered by the Fair Labor Standards Act, 5 C.F.R. § 551.431 establishes criteria for determining when time spent in standby status is considered compensable hours of work). Consequently, we conclude that the disputed sections of the proposal are nonnegotiable.
Having concluded that the disputed sections are inconsistent with the above-cited regulation, it is unnecessary to address whether the sections constitute an appropriate arrangement under section 7106(b)(3) of the Statute. Section 7106(b)(3) of the Statute applies only when an agency exercises the management rights set out in section 7106, and does not apply when a proposed matter is inconsistent with a Government-wide regulation. See section 7117(a)(1) of the Statute; see also National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, 41 FLRA 1158, 1183 (1991). Additionally, in light of our conclusions, it is unnecessary to address the Agency's additional contentions that the disputed sections are nonnegotiable.
Finally, we find that the Union's claim of a constitutional violation is not properly before us in this proceeding. In resolving negotiability issues under section 7117 of the Statute, we examine whether proposals are inconsistent with laws, rules, or regulations. There is no contention here that a proposed matter is inconsistent with the Constitution. Rather, the thrust of the Union's argument is that the Agency's refusal to compensate employees at closed fire camps is a violation of their constitutionally protected liberty interests. Such a claim is not appropriately adjudicated in a negotiability proceeding. See generally, Social Security Administration, 45 FLRA 303, 322 (1992), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 92-1383 (D.C. Cir. Aug. 21, 1992).
The petition for review is dismissed.
(If blank, the decision does not have footnotes.)
1/ The Agency filed a supplemental brief in order to respond to a
constitutional issue raised by the Union in its reply brief. The
Union did not object to the filing of the supplemental brief and
we will consider it. Further, in its supplemental brief, the
Agency withdrew its allegation of nonnegotiability as to Section
12.3-2 of the proposal. Accordingly, that section is not before
us and will not be considered further.
2/ 5 C.F.R. § 551.431(a) provides:
(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