51:1290(105)AR - - AFGE, Local 1897 and Eglin AFB, FL - - 1996 FLRAdec AR - - v51 p1290
[ v51 p1290 ]
The decision of the Authority follows:
51 FLRA No. 105
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
EGLIN AIR FORCE BASE, FLORIDA
May 24, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator B. R. Skelton filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exception.
The Arbitrator denied a grievance disputing the grievants' entitlement to standby pay pursuant to 5 C.F.R. § 551.431.
We conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exception.
II. Arbitrator's Award
The Union filed a grievance alleging that 10 employees were entitled to standby pay for periods during which the employees were off-duty but required to report to duty when called. The Arbitrator rejected the Union's claim, finding, pursuant to 5 C.F.R. § 551.431(a)(2),(*) that the evidence failed to establish that the employees were restricted to their living quarters or designated post of duty; substantially limited in their activities; or required to remain in a state of readiness to perform work. Instead, as the employees were furnished with beepers and permitted to exchange their duties with other employees, the Arbitrator determined, pursuant to 5 C.F.R. § 551.431(b), that they were in an on-call status. Therefore, the Arbitrator concluded that the grievants had not met the requirements for standby pay and, accordingly, he denied the grievance.
III. Positions of the Parties
The Union contends that the award is contrary to regulation because the grievants met the criteria for standby pay as established by 5 C.F.R. § 551.431(a)(2). Specifically, the Union maintains that the grievants were in a standby status because "[t]heir designated post of duty was within the range of the beeper[;]" their activities were substantially limited because they were required to report for duty within 45 minutes of being called; and they were precluded from engaging in any activity that would "hinder their ability to work if called in." Exception at 1. The Union also claims that the grievants were not in an on-call status pursuant to 5 C.F.R. § 551.431(b)(1) because: as argued with respect to standby pay, their duty station was within the range of their beepers; and 5 C.F.R. § 551.431(b)(2) does not apply because they were allowed to make changes to their assignments "only after elevating the swap to higher management officials." Id. at 2.
IV. Analysis and Conclusions
Because the Union challenges the award's consistency with a Government-wide regulation, we review de novo the question of whether the award is inconsistent with 5 C.F.R. § 551.431. U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).
5 C.F.R. § 551.431 establishes criteria for determining when an employee is in a standby (paid) or an on-call (unpaid) status. As relevant here, in order to be in a standby status under 5 C.F.R. § 551.431(a)(2), three criteria must be satisfied: the employee must be restricted to his or her designated post of duty, have his or her activities substantially limited, and be in a state of readiness to perform work. 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, 778-79 (1991), enforced, 962 F.2d 1066 (D.C. Cir. 1992). If these criteria are not satisfied, the fact that the employee is required to carry a beeper and remain within a reasonable call-back radius from the employing agency does not thereby change the employee's status from on-call to standby. Id. at 779. In fact, 5 C.F.R. § 551.431 precludes an employee in an on-call status from being paid regardless of whether the employee must carry or respond to a beeper. Id.
We find, applying 5 C.F.R. § 551.431 to this case, that the Arbitrator properly concluded that the grievants did not meet the requirements for standby pay and, rather, that they met both criteria pertaining to on-call status set forth in 5 U.S.C. § 551.431(b). First, the Union incorrectly argues that the grievants were within their designated post of duty when they were required to remain within the range of their beepers and that, therefore, they were in standby status. Rather, as the Arbitrator found, 5 C.F.R. § 551.431(b)(1) precludes standby pay for employees who are permitted to carry beepers and required to remain within a reasonable call-back radius. Accordingly, we conclude that the Union has failed to establish that the award is deficient in this respect. See Allen v. U.S., 1 Cl. Ct. 649, 651-52 (1983). Second, it is uncontroverted that at least some of the grievants had arranged to exchange their on-call duties with other employees. Nothing in the language of the governing regulation limits the application of 5 C.F.R. § 551.431(b)(2) solely to situations in which such arrangements are made without consultation with management, as suggested by the Union. Accordingly, as the Union has also failed to establish that the award is deficient in this respect, we will deny the Union's exception.
The Union's exception is denied.
5 C.F.R. § 551.431 provides:
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 readinessto 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.
(If blank, the decision does not have footnotes.)
*/ 5 C.F.R. Part 551 pertains to pay administration under the Fair Labor Standards Act. Section 551.431, which is set forth in Appendix A, governs time spent either on standby or in an on-call status.