Department of the Army, Corps of Engineers, Detroit District (Activity) and American Federation of Government Employees, Local 830 (Union) 

 5 FLRA No. 99
 
 DEPARTMENT OF THE ARMY,
 CORPS OF ENGINEERS, DETROIT
 DISTRICT
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 830
 Union
 
                                            Case No. 0-AR-37
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR ELLIOT I. BEITNER FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE GRIEVANT, A WG-10
 ELECTRICIAN, FILED A GRIEVANCE SEEKING COMPENSATION FOR TIME SPENT IN AN
 ON-CALL DUTY STATUS.  THE ACTIVITY'S ON-CALL PROGRAM /1/ MAINTAINED A
 ROTATING LIST OF EMPLOYEES WHO WOULD BE AVAILABLE TO RESPOND TO
 EMERGENCY SERVICE NEEDS.  WHEN IN AN ON-CALL STATUS, EMPLOYEES ARE NOT
 REQUIRED TO BE AT THEIR WORKSITE OR EVEN AT HOME.  THEY MUST ONLY BE
 AVAILABLE TO BE CONTACTED BY TELEPHONE OR BY A BEEPING DEVICE AND BE
 ABLE TO RETURN TO DUTY TO RESPOND TO AN EMERGENCY CALL.  IF THEY RESPOND
 TO SUCH A CALL, THEY ARE COMPENSATED FOR THE WORK PERFORMED.
 
    THE ARBITRATOR STATED THE RELEVANT ISSUE TO BE WHETHER THE ACTIVITY
 COULD SCHEDULE EMPLOYEES FOR ON-CALL DUTY STATUS WITHOUT COMPENSATING
 THEM AN ADDITIONAL AMOUNT FOR THAT STATUS AND WITH THE RIGHT TO
 DISCIPLINE THEM IF THEY REFUSE TO BE AVAILABLE FOR ON-CALL DUTY.  THE
 ARBITRATOR DETERMINED THAT COMPENSATION FOR ON-CALL DUTY WAS PROHIBITED
 AND HE ADVISED THAT BECAUSE ON-CALL DUTY WAS NOT VOLUNTARY, IT WOULD BE
 "PERMISSIBLE FOR AN EMPLOYER TO DISCIPLINE AN EMPLOYEE FOR FAILURE TO
 RESPOND TO A CALL." ACCORDINGLY, AS HIS AWARD, THE ARBITRATOR FOUND THE
 GRIEVANCE "NON-MERITORIOUS."
 
    THE UNION HAS FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER
 SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE /2/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
 CFR PART 2425. /3/ THE AGENCY FILED AN OPPOSITION.
 
    IN ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE AWARD IS
 DEFICIENT BECAUSE IT IS CONTRARY TO LAW AND TO THE UNITED STATES
 CONSTITUTION.  SPECIFICALLY, THE UNION ARGUES THAT THE ARBITRATOR'S
 FINDING THAT ON-CALL DUTY WAS NOT COMPENSABLE "VIOLATES THE FAIR LABOR
 STANDARDS ACT AND THE FEDERAL EMPLOYEES PAY ACT." THE UNION FURTHER
 ARGUES THAT IF THE AUTHORITY DOES NOT FIND THE ARBITRATOR'S DENIAL OF
 COMPENSATION TO BE DEFICIENT, THE ARBITRATOR'S ADVICE THAT DISCIPLINE
 WOULD BE PERMISSIBLE "COULD VIOLATE THE THIRTEENTH AMENDMENT TO THE
 CONSTITUTION OF THE UNITED STATES AND CHAPTER 61 OF TITLE V."
 
    WITH RESPECT TO THE UNION'S ASSERTION THAT THE ARBITRATOR'S FINDING
 THE ON-CALL DUTY WAS NOT COMPENSABLE IS CONTRARY TO THE FAIR LABOR
 STANDARDS ACT (FLSA) AND THE FEDERAL EMPLOYEES PAY ACT, THE UNION HAS
 PROVIDED NO BASIS ON WHICH TO FIND THE ARBITRATOR'S AWARD DEFICIENT
 UNDER THE STATUTE. THE UNION HAS NOT ESTABLISHED THAT THE PROVISIONS OF
 LAW IT HAS CITED PROVIDE A LEGAL ENTITLEMENT TO COMPENSATION IN THE
 CIRCUMSTANCES OF THIS CASE.  TITLE 5 OF THE UNITED STATES CODE AS IT
 CONCERNS OVERTIME OF FEDERAL WAGE SYSTEM EMPLOYEES PROVIDES FOR
 OVERTIME
 COMPENSATION FOR EMPLOYEES IN AN ON-CALL STATUS ONLY WHEN THE EMPLOYEE
 "REGULARLY IS REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF HIS POST
 OF DUTY." 5 U.S.C. 5544(1976).  LIKEWISE, FOR PURPOSES OF FLSA A FEDERAL
 EMPLOYEE WHO IS MERELY ON CALL IS NOT ON DUTY AND THE TIME SPENT ON SUCH
 DUTY IS NOT WORKTIME.  /4/ THE ONLY CITATION OF AUTHORITY CITED BY THE
 UNION IS THE COURT OF CLAIMS' DECISION IN RAPP V. UNITED STATES, 340
 F.2D 635 (CT. C1. 1964).  HOWEVER, THAT DECISION PROVIDES NO SUPPORT FOR
 THE UNION'S ASSERTION.  IN RAPP THE COURT EXPRESSLY HELD THAT ON-CALL
 DUTY TOURS PERFORMED BY FEDERAL EMPLOYEES IN THEIR OWN HOMES WERE NOT
 "HOURS OF WORK" WITHIN THE MEANING OF THE FEDERAL EMPLOYEES PAY ACT AND
 THAT ACCORDINGLY THE EMPLOYEES WERE NOT ENTITLED TO OVERTIME
 COMPENSATION FOR SUCH TOURS.  THUS, BECAUSE THE GRIEVANT WAS NOT
 REQUIRED TO REMAIN "AT OR WITHIN THE CONFINES OF HIS POST OF DUTY" WHEN
 PERFORMING ON-CALL DUTY AND BECAUSE SUCH DUTY WAS NOT WORKTIME FOR
 PURPOSES OF FLSA, THE UNION HAS FAILED TO DEMONSTRATE THAT THE
 ARBITRATOR'S FINDING THAT SUCH DUTY WAS NOT COMPENSABLE IS CONTRARY TO
 FLSA OR THE FEDERAL EMPLOYEES' PAY ACT.
 
    WITH RESPECT TO THE UNION'S ASSERTION THAT THE ARBITRATOR'S ADVICE
 THAT DISCIPLINE WOULD BE PERMISSIBLE COULD VIOLATE CHAPTER 61 OF TITLE 5
 OF THE UNITED STATES CODE, THE UNION PROVIDES NO BASIS FOR FINDING THE
 ARBITRATOR'S AWARD DEFICIENT UNDER THE STATUTE.  THE UNION HAS NOT SHOWN
 IN WHAT MANNER THIS PART OF THE AWARD IS CONTRARY TO THAT CHAPTER OF
 TITLE 5 WHICH CONCERNS HOURS OF WORK OF FEDERAL EMPLOYEES AND, AS
 RELEVANT HERE, ONLY ESTABLISHES A BASIC ADMINISTRATIVE WORK WEEK.
 
    WITH RESPECT TO THE UNION'S ASSERTION THAT THE ARBITRATOR'S ADVICE
 THAT DISCIPLINE WOULD BE PERMISSIBLE COULD VIOLATE THE THIRTEENTH
 AMENDMENT, THE UNION SIMILARLY HAS PROVIDED NO BASIS FOR FINDING THE
 AWARD DEFICIENT.  THE UNION HAS FAILED TO SHOW IN WHAT MANNER THIS AWARD
 VIOLATES THE THIRTEENTH AMENDMENT.  /5/ IN TERMS OF THE AWARD, IT HAS
 BEEN NOTED THAT THE ARBITRATOR FOUND AS HIS AWARD THAT THE GRIEVANCE WAS
 "NON-MERITORIOUS." WHILE REJECTING THE GRIEVANCE CONCERNING THE ON-CALL
 DUTY PROGRAM, THE ARBITRATOR DID NOT ORDER THE GRIEVANT OR ANY OTHER
 EMPLOYEE DISCIPLINED.  LIKEWISE, THE UNION DOES NOT CLAIM THAT THE
 ACTIVITY HAS CHOSEN OR WILL CHOOSE TO DISCIPLINE EMPLOYEES AS A RESULT
 OF THIS AWARD BY THE ARBITRATOR.  INSTEAD, THE ONLY SUPPORT ADVANCED BY
 THE UNION FOR THIS ASSERTION IS PORTIONS OF A 1974 LETTER TO THE
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES FROM AN ASSISTANT GENERAL
 COUNSEL OF THE CIVIL SERVICE COMMISSION EXPRESSING HIS INDIVIDUAL
 PERSONAL VIEW AS TO WHETHER AN AGENCY COULD DISCIPLINE AN EMPLOYEE FOR
 REFUSING TO PERFORM ON-CALL DUTY WITHOUT COMPENSATION.  WITHOUT CITATION
 OF AUTHORITY, HE ADVISED THAT "THE RIGHT INHERING IN THE FREEDOM WE
 CLAIM AS AMERICAN CITIZENS," WHICH RIGHT IS "RECOGNIZED IN THE
 THIRTEENTH AMENDMENT AND ELSEWHERE," CONSTITUTED A LEGAL IMPEDIMENT TO
 DISCIPLINE UNLESS THE ON-CALL DUTY WAS INHERENT IN THE EMPLOYEE'S
 POSITION. IN ADVANCING THIS AS ITS SOLE SUPPORT, HOWEVER, THE UNION HAS
 NOT ESTABLISHED IN TERMS OF THIS CASE THAT THE ON-CALL DUTY PERFORMED BY
 THE GRIEVANT, A WG-10 ELECTRICIAN, WAS NOT INHERENT IN HIS POSITION.
 MORE IMPORTANTLY, THE UNION HAS FAILED TO DEMONSTRATE IN THE
 CIRCUMSTANCES OF THIS CASE THE COMPULSION NECESSARY TO ESTABLISH A
 VIOLATION OF THE THIRTEENTH AMENDMENT WHICH ABOLISHES SLAVERY AND
 INVOLUNTARY SERVITUDE.  /6/ CONSEQUENTLY, THE UNION HAS PROVIDED NO
 BASIS FOR FINDING THE ARBITRATOR'S AWARD CONTRARY TO THE U.S.
 CONSTITUTION.  /7/
 
    THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE
 AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
 AUTHORITY'S RULES AND REGULATIONS.  ACCORDINGLY, FOR THE FOREGOING
 REASONS AND PURSUANT TO SECTION 2425.3 OF THE RULES AND REGULATIONS, THE
 ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., MAY 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ALTHOUGH THE ARBITRATOR TERMED THIS A "CALL-BACK PROGRAM," THE
 PROGRAM INVOLVED IN THIS CASE IS PROPERLY TERMED AN "ON-CALL" PROGRAM IN
 ACCORDANCE WITH SUBCHAPTER S8-4B(2) OF FPM SUPPLEMENT 532-1.
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE OR REGULATIONS;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /3/ ALTHOUGH THE UNION'S EXCEPTION WAS FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425 (1980), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.
 
    /4/ SEE FEDERAL PERSONNEL MANUAL LETTER 551-14, MAY 15, 1978.
 
    /5/ THE THIRTEENTH AMENDMENT PROVIDES:
 
    SECTION 1.  NEITHER SLAVERY NOR INVOLUNTARY SERVITUDE, EXCEPT AS A
 PUNISHMENT FOR CRIME
 
    WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED, SHALL EXIST WITHIN
 THE UNITED STATES, OR ANY
 
    PLACE SUBJECT TO THEIR JURISDICTION.
 
    SECTION 2.  CONGRESS SHALL HAVE POWER TO ENFORCE THIS ARTICLE BY
 APPROPRIATE LEGISLATION.
 
    /6/ A NECESSARY PREREQUISITE FOR AN EMPLOYEE IN PROVING A VIOLATION
 OF THE THIRTEENTH AMENDMENT IS A SHOWING OF COMPULSION OF CONTINUED
 EMPLOYMENT WITHOUT AN OPTION OF VOLUNTARILY QUITTING FURTHER EMPLOYMENT.
  E.G., FLOOD V. KUHN, 443 F.2D 264 (2D CIR. 1971), AFF'D ON OTHER
 GROUNDS 407 U.S. 258(1972).
 
    /7/ UNDER THE PROVISIONS OF SECTION 7105(I) OF THE STATUTE (5 U.S.C.
 7105(I)), THE AUTHORITY REQUESTED AN ADVISORY OPINION FROM THE OFFICE OF
 PERSONNEL MANAGEMENT REGARDING THE PROVISIONS OF CIVIL SERVICE LAWS
 RELEVANT TO THIS CASE.  OPM'S RESPONSE, TO WHICH THE PARTIES WERE
 AFFORDED THE OPPORTUNITY TO FILE COMMENTS, IS CONSISTENT WITH THE
 AUTHORITY'S INTERPRETATION OF CIVIL SERVICE LAWS IN THIS CASE.