United States Department of Homeland Security, United States Customs And Border Protection, Dallas, Texas (Agency) and National Treasury Employees Union, Chapter 140 (Union)

XX FLRA No

64 FLRA No. 108                             

FEDERAL
LABOR RELATIONS AUTHORITY
WASHINGTON,
D.C.


_____

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY

UNITED STATES
CUSTOMS AND BORDER PROTECTION

DALLAS, TEXAS
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION

CHAPTER 140
(Union)

0-AR-4374

_____

DECISION

March 26, 2010

_____

Before the
Authority:  Carol Waller Pope, Chairman, and

Thomas M. Beck and
Ernest DuBester, Members

I.          Statement of the Case

This
matter is before the Authority on exceptions to an award of Arbitrator Barnett
Goodstein filed by the Agency under § 7122 of the Federal Service
Labor-Management Relations Statute (the Statute) and part 2425 of the
Authority’s Regulations.  The Union filed an opposition to the Agency’s
exceptions.   
            The Arbitrator found that the Agency violated
the parties’ agreement by not placing in a pay status, and paying, an employee
who had recalled his personal cell phone information and returned a
government-issued cell phone at which he could be reached outside his regular
work hours.  Accordingly, the Arbitrator ordered the Agency to pay that
employee backpay for any periods during which the Agency requested that he
either carry a paging device or provide a phone number where he could be
reached.
For the reasons discussed below,
we set aside the award.

II.        Background
and Arbitrator’s Award
            The Agency assigns
two employees whom it employs at the Dallas-Fort Worth (DFW) Port to conduct
duties outside their regular work hours.  For a period of time, the Agency
assigned the employees to “stand by status, awaiting a call” to perform duties
outside their regular work hours, and did not pay them for time spent in that
status.  Award at 2.  The employees each had provided the Agency with a
telephone number where they could be reached.  Id. 
            Subsequently, one
of the employees (the employee) “recalled his information concerning his
telephone,” returned a government-issued cell phone, and requested overtime pay
for periods during which he had been on call.  Id.  The Union filed a grievance on the employee’s behalf and alleged that the failure to pay him
for overtime violated the parties’ agreement.  Id.
            When the grievance
was unresolved, it was submitted to arbitration.  The Arbitrator stated the
issues, in pertinent part, as:  “Does the Agency violate the . . . agreement .
. . by the way it uses the call out agreement at the DFW Port?”; and “If so,
what is the appropriate remedy therefor?”[1] 
Id. at 1.
            The Arbitrator
stated that the issues before him involved “contract interpretation,” not “statutory,
or other, interpretation.”  Id. at 7.  The Arbitrator considered
paragraph 2 of the parties’ agreement, which provides, in pertinent part, that
an employee “will not be considered in a pay status . . . if the employee, for
the purpose of being contacted, has volunteered to leave a telephone number or
carry a paging device.”[2] 
Id. at 1-2.  The Arbitrator found that the “flip side” of this wording
is that “if the [employee] has not volunteered . . . to carry a paging device .
. ., and is asked to carry one,” then the employee is in a pay status.  Id. at 5-6.
            The Arbitrator
determined that the two employees at the DFW Port “were informed that, if they
did not respond to a telephone call to them within 15 minutes from time of such
call, while they are on call out duty, they are subject to disciplinary
action[,]” and, “[t]hus, responding to telephone calls . . . is a mandatory
part of their duties[.]”  Id. at 7.  The Arbitrator concluded that the
Agency violated the agreement “by not placing in a pay status those [employees]
who [did] not volunteer to leave a telephone number or carry a paging device,
and [were] assigned such ‘call out’ duty.”  Id. at 8.  He awarded the
employee backpay, retroactive to the date of the filing of the grievance, “for
each time he was assigned ‘on call’ duty and requested to leave a telephone
number (unless he had already done so) or was requested to carry a paging
device, and did not volunteer to do so before being asked to leave a number
and/or carry a paging device.”  Id.
III.       Positions of the
Parties
A.               
Agency’s Exceptions
The Agency
contends that the award is contrary to case law and Federal regulations
interpreting the Fair Labor Standards Act (FLSA).  Exceptions at 6. 
Specifically, the Agency asserts that these authorities establish that an
employee is not entitled to compensation merely for carrying a communications
device, see id. at 9, and also “establish that the notion of being
restricted for work related reasons refers only to the degree to which employee[s
are] unable to use their off-duty time for their own purposes[]” – an issue
that the Arbitrator did not address.  Id. at 8.  According to the
Agency, the employee is permitted to use his off-duty time for his own
purposes, is not restricted to his home, and is permitted to swap shifts with
other employees.  Id. at 10.  In addition, the Agency contends that the
award is based on nonfacts and is contrary to management’s right to assign
work.  See id. at 6, 15-23.
B.        Union’s Opposition    
            The Union argues that the award is not contrary to the FLSA.  According to the Union, the Arbitrator found that the Agency had agreed to order employees to carry cell
phones only when in standby status, and to properly compensate them when it
places them in such status.  Opp’n at 13.  In this connection, the Union asserts that paragraph 2 of the parties’ agreement is enforceable and that, under
that provision, “it was up to the Agency to place more restrictions upon the
[employee’s] movements[]” in order to enable him to be entitled to pay.  Id. at 8, 9.  For support, the Union cites U.S. Dep’t of Veterans Affairs, Med.
Ctr., St. Louis, Mo.
, 57 FLRA 296 (2001) (Veterans Affairs)
(Chairman Cabaniss dissenting); AFGE, Council of Marine Corps Locals (C-240),
39 FLRA 773 (1991) (Marine Corps Locals), aff’d sub nom. U.S. Dep’t
of the Navy v. FLRA
, 962 F.2d 1066 (D.C. Cir. 1992).  Finally, the Union argues that the award is not based on nonfacts and is not contrary to management’s
rights.  See Opp’n at 16-19, 20-24.  
IV.       Analysis and
Conclusion
The Agency argues that the award is
contrary to the FLSA.  When an exception involves an award’s consistency with
law, the Authority reviews any question of law raised by the exception and the
award de novo.  E.g., NTEU, Chapter 24, 50 FLRA 330, 332 (1995). 
In applying the standard of de novo review, the Authority assesses
whether the arbitrator’s legal conclusion is consistent with the applicable
standard of law.  Id.
Under 5 C.F.R. § 551.431(a)(1), an
employee’s 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 his or her time.[3] 
See AFGE, Nat’l Border Patrol Council, Locals 2544 & 2595, 62 FLRA
428, 431 (2008).  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
medicines.  Id.  As the Office of Personnel Management explained in
promulgating § 551.431, “[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 . . . [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.”  Id. (quoting 64 Fed. Reg. 69165, 69167 (1999).
The mere fact that an employee is
required to carry an electronic paging device does not place the employee in
standby duty within the meaning of 5 C.F.R. § 551.431; in fact, that regulation
“precludes an employee in an on-call status from being paid regardless of
whether the employee must carry or respond to a beeper.”  AFGE, Local 1897,
51 FLRA 1290, 1292 (1996).  In addition, the mere fact that an employee is
required to respond to an employer call within a limited amount of time does
not, by itself, demonstrate that the employee is entitled to standby pay.  See,
e.g.,
Bright v. Houston N.W. Med. Ctr. Survivor, Inc., 934 F.2d 671,
677 (5th Cir. 1991) (Bright), cert. denied 502 U.S. 1036 (1992) (no pay entitlement despite requirement to arrive at premises within
twenty minutes of receiving call).  Further, parties may not negotiate over
proposals that would entitle employees to standby pay unless such pay would be
consistent with the requirements of 5 C.F.R. § 551.431.  See NFFE, Forest Serv. Council, 45 FLRA 1204, 1210-12 (1992); AFGE, AFL-CIO, Local 1867,
42 FLRA 787, 792-94 (1991).  Cf. U.S. Dep’t of the Army, Evans Army Cmty.
Hosp., Fort Carson, Colo.
, 58 FLRA 244, 246 (2002) (Authority found
that there was “no claim, or other basis on which to conclude,” that parties
are permitted to negotiate entitlements for FLSA-exempt employees to receive
compensation greater than that provided for by regulation). 

The Arbitrator interpreted the parties’
agreement to require the Agency to pay the employee for any time during which
he was required to carry a cellular phone.  The Arbitrator did not find that
the agreement entitled the employee to pay only when his activities were
substantially limited, as the FLSA requires.  Although the Arbitrator did find
that the employee was required to respond to calls within fifteen minutes, as
discussed above, this alone did not entitle the employee to pay under the
FLSA.  See, e.g., Bright, 934 F.2d at 677.  In short, the Arbitrator
interpreted the agreement as requiring that the employee be paid without regard