DEPARTMENT OF DEFENSE HEADQUARTERS, U.S. MARINE CORPS WASHINGTON, D.C. AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF DEFENSE
HEADQUARTERS, U.S. MARINE CORPS
AMERICAN FEDERATION OF GOVERNMENT
Case No. 93 FSIP 72
DECISION AND ORDER
The American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Defense, Headquarters, U.S. Marine Corps, Washington, D.C. (Employer).
After investigation of the request for assistance, the Panel determined that the impasse concerning electronic paging devices (commonly known as "beepers") should be resolved on the basis of written submissions, with the Panel to take whatever action it deemed appropriate to resolve the impasse. Written submissions were made pursuant to this procedure. The Panel then requested that the parties provide additional information concerning the prevailing practices involving such devices in the public and private sectors. The Panel has now considered the entire record, including the supplementary information submitted by the parties.
The Employer develops and maintains a ready military force for amphibious operations. The Union represents 9,000 bargaining-unit employees in 2 consolidated units, 1 professional and 1 non-professional, who are stationed at some 19 bases nationwide. They work in positions such as plumber, electrician, carpenter, and inspector. The parties' master collective bargaining agreement (MCBA) became effective on November 8, 1990.
The dispute arose during negotiations for the 1990 MCBA. The Employer declared the Union's proposal nonnegotiable.(1) The Federal Labor Relations Authority (FLRA), however, as affirmed by the U.S. Court of Appeals for the District of Columbia Circuit, found the proposal negotiable.(2) Under the current MCBA, the Employer may require employees to carry a beeper to facilitate communications with them during duty and non-duty hours.(3) During emergencies caused by severe weather or other circumstances that occur after regular hours, employees might be recalled to perform emergency electrical and plumbing repairs and to assess and abate hazardous working conditions. It is undisputed that when employees respond to actual calls, they are in a duty status and are compensated for a minimum of 2 hours for any recall, generally at overtime rates.
ISSUE AT IMPASSE
The dispute concerns whether employees should be placed in a pay status whenever they are required to carry beepers.
POSITIONS OF THE PARTIES
1. The Employer's Position
Basically, the Employer proposes that the status quo be maintained. When it lacks sufficient volunteers, it would rotate beeper assignments to employees who would be in a call-back, non-pay status. In addition, Article 15, section 6, of the current MCBA would be modified by: (1) eliminating a reference to length of assignment periods(4) and (2) granting supervisors the discretion to excuse an employee from coming back, if, in their opinion, circumstances made the return "impracticable." Its proposal is consistent with Federal regulations which require compensation at overtime rates only when employees are actually called back to perform work. The beeper call-back system circumvents previous communications problems associated with telephone use and helps to ensure that overtime work assignments, when there are insufficient volunteers, are evenly distributed. In addition, employees appear to be satisfied to earn overtime once they are called back; none have filed grievances or made complaints about beepers. If it were forced to adopt the Union's proposal to provide compensation, and decided to continue to require employees to use beepers, they would likely be placed in a standby status. As a result, they would be required to remain at the worksite for long hours, a circumstance that would be disliked and severely intrusive on family life. Its proposal, on the other hand, closely parallels the resolution adopted by the Panel in a previous case,(5) and, contrary to the Union's position, the level of intrusion on personal activities does not warrant placing employees in a pay status. Furthermore, as in Groton, supervisors may excuse employees from call-back assignments when their return to the workplace would be impracticable. Finally, if the Union's proposal were adopted, beeper use would likely be discontinued since all of the existing mechanisms for placing employees in a pay status, such as standby, compensatory time, and annualized premium pay,(6) would result in unwarranted cost increases.
2. The Union's Position
The Union proposes that "employees will not be required to carry or respond to 'beepers' unless they are in a duty and pay status." Employees should be compensated when they are assigned to carry beepers because their odd-hour availability is advantageous to the Employer, yet their freedom to engage in a variety of family-oriented and personal activities during non-duty hours is significantly impaired. They also are constrained by the need to refrain from drinking alcoholic beverages and to avoid strenuous activity so that, should they actually be called back, they will be fit for duty and avoid disciplinary consequences. Other employees who are paid at the same rates have no similar, work-related constraints during their "non-duty" hours. Significantly, at least 31 public and private sector organizations have negotiated contractual provisions that provide compensation to employees for carrying beepers after their normal hours of work. Such agreements generally grant employees amounts equal to 1 to 2 hours' pay for each day included in the weekly call-back period. Furthermore, the proposal is fully negotiable and does not impinge on the Employer's right to require employees to carry beepers. Finally, it is the Employer who is attempting to change the status quo, since beepers mainly came into use under the 1990 MCBA, after it asserted that the Union's related proposal was nonnegotiable.
Having considered the evidence and arg