American Federation of Government Employees, National Border Patrol Council, Locals 2544 & 2595 (Union) and United States Department of Homeland Security, U.S. Customs and Border Protection, Yuma and Tucson Sectors (Agency)

[ v62 p428 ]

62 FLRA No. 81

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
LOCALS 2544 & 2595
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
U.S. CUSTOMS AND BORDER PROTECTION
YUMA AND TUCSON SECTORS
(Agency)

0-AR-4125

_____

DECISION

May 27, 2008

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Suzanne R. Butler filed by the Union [n1]  under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. [n2]  The Agency filed an opposition to the Union's exceptions.

II.     Background and Arbitrator's Award

      This case involves a dispute over whether United States Border Patrol Agents (Agents) patrolling the U.S. Border with Mexico at remote locations are entitled to standby pay. In 2002, the Agency established trailer camps to patrol the large, desolate region just north of the Arizona/Mexico border. Award at 5. The camps are located in rocky desert areas with rough terrain, approximately an hour and a half to three hours from the nearest border patrol stations. Id.

      Agents voluntarily sign up for tours of duty at the camps, which last about seven days. Id. at 6. While at the camps, Agents are not permitted to possess or drink alcohol or wear clothing violating Equal Employment Opportunity requirements. Id. Agents are also prohibited from bringing personally owned vehicles to the camps and must request permission from their supervisors to leave. Id. at 6, 8. Civilian visitors are not allowed at the camps and there is little or no cell phone service, and no Internet or postal service. Id. at 6.

      Agents fill out their time sheets prior to working their shifts at the camps, and record their time worked as fourteen hour shifts at eight hours of regular pay, four hours of overtime pay, and up to two hours of administratively uncontrollable overtime (AUO) pay under 5 U.S.C. § 5545(c)(2). Id. The remaining ten hours of each twenty-four hour day is treated as unpaid non-duty time. Id. Agents are occasionally asked during their non-duty times to help with emergency situations, for which they can request AUO pay afterward. Id. at 8-9.

      The Union filed two grievances alleging that the Agents are entitled to standby pay for ten hours of non-duty time each day pursuant to both 5 U.S.C. § 5545 [n3]   [ v62 p429 ] and 5  C.F.R. § 551.431. [n4]  Id. at 9-10. The parties stipulated to the following issue to be decided at arbitration:

Are the Border Patrol Agents at Camps Grip, Papago Farms, and Singing Saguaro required to remain in a standby duty status for work-related reasons and therefore entitled to standby pay under Title 5 of the United States Code and Code of Federal Regulations?

Id. at 2.

      Initially, the Arbitrator decided that the Agents' ten hours of non-duty time qualified as standby duty for work-related reasons pursuant to 5 C.F.R. § 551.431. In this regard, the Arbitrator first determined that the Agents were restricted to their duty posts at the camps by official order because they were: (1) required to obtain permission from their supervisors to leave the camps; (2) not permitted to bring their personal vehicles to the camps; (3) prohibited from using government vehicles to leave the camps for purposes other than official use; and (4) required to remain at the camps specifically to respond to work-related emergency situations. Id. at 22-23 (citing Jt. Ex. E). Next, the Arbitrator found that the Agents' activities were substantially limited because they had limited ability to use their free-time at the camps for their own purposes. Id. at 23-25. Finally, the Arbitrator decided that the Agents were required to remain in a state of readiness to perform work because they were: (1) obligated to stay at the camps during non-duty time; (2) to remain on alert and sufficiently rested; and (3) occasionally asked to respond to emergencies in the field. Id. at 26.

      Despite finding that the Agents were required to remain on standby duty status, the Arbitrator determined that the Agents were not entitled to standby pay because they did not qualify for standby pay under § 5545. Specifically, the Arbitrator found that the Agents did not "regularly remain at, or within the confines of, [their] station[s]," a requirement to qualify for premium pay on an annual basis, because their week-long tours of duty at the camps did not occur on a "regularly recurring basis," as defined under § 550.143(a)(2). 5 C.F.R. § 550.141, 143(a)(2); Award at 27. Consequently, the Arbitrator determined that the Agents were not entitled to standby pay for their non-duty time at the camps. Id. at 28.

III.     Positions of the Parties

A.      Union's Exceptions

      The Union claims that the award is contrary to law because the Arbitrator mistakenly "failed to analyze part 551, and those regulations directly applicable to the FLSA." Exceptions at 5. The Union contends that Authority precedent "clearly holds that grievants who satisfy the criteria of the standby duty status must receive whichever pay system provides the greater entitlement to pay: the FLSA or Title 5." Id. at 5-6. The Union then argues that the border patrol agents are entitled to standby pay under the FLSA, as it provides the greater entitlement to pay. Id. at 6.

B.     Agency's Opposition

      The Agency agrees with the Union that the Arbitrator erred in her legal analysis, but claims that the outcome denying the Agents standby pay is correct. Opposition at 9. The Agency contends that the Arbitrator should have conducted two analyses, determining under each, 5 U.S.C. § 5545, and its implementing regulation, 5 C.F.R. § 550.143, and the FLSA and its implementing regulation, 5 C.F.R. § 551.431, first, whether the Agents were engaged in standby duty, and second, whether the Agents qualified for standby pay. Essentially, the Agency argues that, after determining that the Agents were engaged in standby duty under 5 C.F.R. § 551.431, the Arbitrator should have analyzed whether the Agents were subject to standby pay under § 551, instead of relying upon § 550 for that part of the analysis. Id. at 12.

      Additionally, the Agency contends that a proper analysis shows that the employees are not on standby duty under § 551.431. Id. at 19. Specifically, the Agency argues that the Arbitrator erred in finding that the Agents are restricted by official order to remain at the camps for work-related reasons under [ v62 p430 ] § 551.431(a)(2) [n5]  because the Agents remain at the camps due to the camps' remote geographic locations, not pursuant to an official order. Id. at 28-29. The Agency also claims that the Arbitrator incorrectly found that the Agents' activities were substantially limited, citing the notice of the final rule published in the Federal Register for support, which states, "[i]f an employee is relieved from duty and free to pursue personal activities (though, for practical reasons, limited in where he or she may go), the employee is not in a duty status and the hours are not compensable." Id. at 32 (citing 64 Fed. Reg. 69165 (Dec. 10, 1999)). Additionally, the Agency argues that the Arbitrator erred in deciding that the Agents are required to remain in a state of readiness while off duty at the camps because she failed to consider Authority precedent addressing "state of readiness." In support of this contention, the Agency cites National Federation of Federal Employees Forest Service Council, 45 FLRA 1204 (1992) (Forest Service), for the proposition that remaining available for emergency responses does not equate to having to remain in a state of readiness to perform work. Opposition at 33.

      Furthermore, the Agency contends that the Agents are not entitled to standby pay under § 5545(c)(1) because they already receive premium pay for administratively uncontrollable overtime of 25 percent of their basic pay under § 5545(c)(2). Id. at 17. Finally, the Agency argues that § 5545(c)(1) is not applicable in this case since its implementation requires a standby premium pay system approved by Office of Personnel Management (OPM) that is already in place, and no such system currently exists. Id. at 16-17.

IV.     Analysis and Conclusion

      Under § 7122(a)(1) of the Statute, an arbitration award will be found deficient if it conflicts with any law, rule or regulation. Overseas Education Ass'n, 51 FLRA 1246, 1251 (1996). The Authority reviews questions of law raised by exceptions to an arbitration award de novo. United States Dep't of Transportation Federal Aviation Admin., 61 FLRA 750, 752 (2006).  See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable legal standard. See United States Dep't of Defense, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998) (DOD). In this regard, an arbitrator's failure to apply a particular legal analysis "does not render [an] award deficient because . . . in applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with law, based on the underlying factual findings." AFGE, Nat'l Border Patrol Council, 54 FLRA 905, 910 n.6 (1998) (AFGE). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. DOD, 55 FLRA at 40.

A.      The Arbitrator erred in her legal analysis denying standby pay.

      As the Agents are nonexempt FLSA employees, standby pay is available to the Agents under either § 5545 or the FLSA, whichever provides a greater entitlement. United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Office of NOAA Corps Operations, Atlantic Marine Center, Norfolk, Virginia, 55 FLRA 816, 820 (1999) (NOAA). Therefore, after determining whether either of these statutes entitled the Agents to pay, the Arbitrator should have awarded the Agents pay under whichever pay system (the FLSA or § 5545) provided the greater entitlement. See 5 C.F.R. § 551.513; NOAA, 55 FLRA at 820. Instead of conducting two separate analyses, the Arbitrator combined the two pay systems, finding that the Agents' nonduty time qualified as standby duty under the FLSA, while finding that the Agents were not entitled to standby pay under § 5545.

      Although the Arbitrator erred, the Authority assesses whether an arbitrator's legal conclusions are consistent with the law, even if the arbitrator's legal analysis is incorrect. AFGE, 54 FLRA at 910 n.6. Thus, we will now address whether the award denying standby duty pay is consistent with the FLSA. In so doing, we note that, as the Union limits its exception to alleged entitlement under the FLSA, we do not further address entitlement under § 5545. [ v62 p431 ]

B.      The Arbitrator erred in finding that the Agents' non-duty time should be considered standby duty under the FLSA.

      Section 551.431(a)(1) provides that standby duty is considered hours of work under the FLSA if the employee is restricted by official order to a designated post of duty, assigned to be in a state of readiness to perform work, and substantially limited in the use of this time. 5 C.F.R. § 551.431(a)(1). An employee's activities may not be found "substantially limited" merely because the employee is subject to restrictions necessary to ensure that the employee will be able to perform his or her duties and responsibilities, such as restricting alcohol consumption or the use of certain medications. Id. Further, employees are not considered restricted for "work-related reasons" if the restriction is a natural result of geographic isolation. 5 C.F.R. § 551.431(a)(1) and (2).

      The Arbitrator determined that the Agents met the requirements to be considered on standby duty during their off-duty hours, finding that the Agents are: (1) restricted to the camps by official order; (2) substantially limited in their activities at the camps; and (3) required to remain in a state of readiness while at the camps. With regard to the second factor, in concluding that the Agents are substantially limited in their activities at the camp, the Arbitrator found that during non-duty time, Agents have the opportunity to change out of their uniforms and into civilian clothes, relax, exercise, shower, cook, eat, read, watch TV/DVDs, play games, socialize amongst themselves, and/or sleep, all without the interruption of their handheld radios, which can be switched off during this time. Award at 6, 10-11, 24. Despite the foregoing, the Arbitrator determined that the Agents' activities are substantially limited because the Agency wants the Agents to be sufficiently rested to perform their duties for their shifts the following day. Id. at 24.

      The Arbitrator's conclusion that the Agents are on standby duty during their off-duty hours is contrary to the regulatory standards. Under § 551.431, an employee's activities may not be found to be substantially limited merely because of restrictions necessary to ensure that he or she will be able to perform his or her duties and responsibilities. 5 C.F.R. § 551.431(a)(2). Here, the Arbitrator found that the Agents could do many of the things that they would do at home during their off-duty hours, but determined the Agents' activities are substantially limited because they are expected to spend their off-duty time relaxing so that they would be rested in case of an emergency and be ready to work their shifts the next day. Id. at 24, 26. However, this is just the type of restriction that the regulations provide do not permit a finding that an employee is on standby duty and thus entitled to standby pay. As OPM explained in promulgating § 551.431 "if an employee is relieved from duty and free to pursue personal activities (though, for practical reasons, limited in where he or she may go), the employee is not in a duty status and the hours are not compensable ... [t]he fact that some restrictions may be placed on an employee's personal activities does not mean that the employee must be placed in duty status." 64 Fed. Reg. 69167. Thus, the Arbitrator's reasoning that the Agents' activities are substantially limited is in error.

      Furthermore, the Arbitrator's finding that the Agents are in a state of readiness to perform work is inconsistent with Authority precedent interpreting § 551.431(a)(2). The Arbitrator determined that the Agents are in a state of readiness because they are "required, by virtue of the limitations on what they can do [at the camps], to be alert and sufficiently rested that they can safely be of assistance to their fellow Agents in an emergency." Award at 26. However, the Authority has specifically held that restrictions on employees' activities due to their work locations do not establish a readiness to perform work. "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." Forest Service, 45 FLRA at 1211, 1209 (rejecting union's argument that restriction to closed fire camp was sufficient to place employees in a state of readiness); see also Naval Amphibious Base, Little Creek, Va., 15 FLRA 445, 447 (1984) (grievant's confinement to uninhabited island for three days without ability to leave did not require that he hold himself in a state of readiness to perform additional work); cf. NOAA, 55 FLRA at 817 (upholding award of standby pay where there was a high degree of frequency with which employees were required to work beyond their regular duty hours and their response had to be immediate as no one else could take the grievants' place). Here, the Agents are encouraged to relax during their off-duty times and are rarely requested to work beyond their regular duty hours. Award at 25. As such, the Arbitrator's conclusion that the Agents are required to remain in a state of readiness to perform work because of the requirements imposed by their isolation is inconsistent with the above precedent.

      As the Arbitrator's conclusions that the Agents' activities are substantially limited and that they are [ v62 p432 ] expected to remain in a state of readiness to perform work are inconsistent with OPM's interpretation of 5 C.F.R. § 551.431 and Authority precedent, we find that the Arbitrator erred in concluding that the Agents non-duty time should be considered standby time under § 551.431. While the Arbitrator erred in this analysis, her award that the Agents were not entitled to standby pay for non-duty time is, nonetheless, correct. As such, we deny the Union's exceptions.

V.     Order

      The Union's exceptions are denied.



Footnote # 1 for 62 FLRA No. 81 - Authority's Decision

   While this case involves AFGE Locals 2544 and 2595, the two unions consolidated their grievances and the Arbitrator treated them as a single entity; the Locals will thus be referred to as "the Union."


Footnote # 2 for 62 FLRA No. 81 - Authority's Decision

   In its exceptions, the Union requested permission to file a response to the Agency's opposition. The Authority's Regulations do not provide for the filing of a response to an opposition to exceptions. While § 2429.26(a) of the Regulations provides that the Authority may permit the filing of additional documents based on a showing of need, the Authority has held that it is incumbent on the moving party to demonstrate why the Authority should consider such supplemental submissions. See United States Dep't of the Navy, Naval Sea Sys. Command, 57 FLRA 543, 543 (2001); United States Dep't of Agric., Food Safety & Inspection Serv., W. Region, 36 FLRA 393, 400 n.* (1990). As the Union did not provide grounds as to why the Authority should consider a supplemental submission, the request is denied.


Footnote # 3 for 62 FLRA No. 81 - Authority's Decision

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

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[.]

Footnote # 4 for 62 FLRA No. 81 - Authority's Decision

   5 C.F.R. § 551.431(a)(1) implements standby pay under the Fair Labor Standards Act (FLSA) and provides:

An employee is on duty, and time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee's activities so substantial that the employee cannot use the time effectively for his or her own purposes. A finding that an employee's activities are substantially limited may not be based on the fact that an employee is subject to restrictions necessary to ensure that the employee will be able to perform his or her duties and responsibilities, such as restrictions on alcohol consumption or use of certain medications.

Footnote # 5 for 62 FLRA No. 81 - Authority's Decision

   5 C.F.R. § 551.431(a)(2) provides:

An employee is not considered restricted for "work-related reasons" if, for example, the employee remains at the post of duty voluntarily, or if the restriction is a natural result of geographic isolation or the fact that the employee resides on the agency's premises. For example, in the case of an employee assigned to work in a remote wildland area or on a ship, the fact that the employee has limited mobility when relieved from duty would not be a basis