15:0445(91)AR - Naval Amphibious Base, Little Creek, Virginia and Tidewater Virginia FEMT Council -- 1984 FLRAdec AR
[ v15 p445 ]
The decision of the Authority follows:
15 FLRA No. 91 NAVAL AMPHIBIOUS BASE LITTLE CREEK, VIRGINIA Activity and TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Union Case No. O-AR-490 DECISION This matter is before the Authority on an exception to the award of Arbitrator Robert W. Foster filed by the Department of the Navy (the Agency) under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The dispute before the arbitrator in this matter concerned a claim for overtime pay for standby time. The grievant was assigned to repair a generator on an isolated, uninhabited island in Chesapeake Bay with transportation to and from the island to be provided by helicopter. The Activity estimated that the work would take 20 regular work hours and assigned the grievant to the island for a three-day period. Since there was no means of leaving the island after completion of each day's work, it was necessary for the grievant to stay on the island until he was picked up on the third day. The Activity authorized overtime pay for any actual generator repair work that might be needed in addition to the estimated regular hours, but refused the grievant's request for overtime pay for eight hours of standby time for each day on the island. The grievant filed a grievance and proceeded to perform the assigned work. The dispute subsequently was submitted to arbitration. The Arbitrator rejected the Activity's contention that since standby duty was neither ordered nor authorized the grievant was not in a standby status while assigned to the island. The Arbitrator determined that employees are entitled to standby pay for periods they are confined to an area and are subject to being called upon to perform work. The Arbitrator found that employees on assignments similar to the grievant's had been paid for standby time in the past and that while the Activity may not have intended to require the grievant to be on standby, the practical effect of the assignment was that he was compelled to remain on the island when not performing actual work, ready to perform work when the need arose or when called. The Arbitrator concluded that the grievant was entitled to compensation for standby time and therefore directed the Activity to pay the grievant for eight hours of standby time at the overtime rate for each 24-hour period he was on the island. In its exception, the Agency contends, among other things, that the Arbitrator's award of overtime compensation is contrary to the Federal Employees Pay Act, 5 U.S.C. 5542(a). The Authority agrees. The legal basis for payment of overtime compensation for time spent in a standby status on other than a regular basis derives from 5 U.S.C. 5542(a), which provides, in part: (H)ours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or . . . in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for, except or otherwise provided by this subchapter. . . . Standby time, compensable as "hours of work" under 5 U.S.C. 5542(a), is defined in FPM Supplement 990-2, Book 610, Subchapter S1-3d as follows: . . . Standby time consists of periods in which an employee is officially ordered to remain at or within the confines of his station, not performing actual work but holding himself in readiness to perform actual work when the need arises or when called. In Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana and American Federation of Government Employees, Local 3457, AFL-CIO, 9 FLRA 543 (1982), the Authority held that under 5 U.S.C. 5542(a) and 5 CFR 550.111 employees' assignments must require them to hold themselves in readiness to perform work in order for such employees to be entitled to overtime compensation for standby duty. /1/ With respect to what constitutes a requirement that an employee "standby," 5 CFR 550.143(a)(1) provides: The requirement must be definite and the employee must be officially ordered to remain at his station. The employee's remaining at his station must not be merely voluntary, desirable, or a result of geographic isolation. . . . Thus, it is clear that standby duty must be officially ordered or otherwise definitely required by the employee's assignment and that standby status does not result from geographic isolation alone. In this case, the Arbitrator essentially determined that the grievant was on standby because he was confined to the island after completing his regular work and was thereby compelled to hold himself in readiness to perform additional work. However, contrary to the Arbitrator's determination, while the grievant had to remain on the island due to its isolated location and relative inaccessibility, he was not thereby compelled to perform standby duty. Standby duty must be officially ordered or required by the assignment and, as acknowledged by the Arbitrator, the Activity did not officially order or even intend to require the grievant to hold himself in readiness to perform any work outside his regular duty hours. Rather, the Activity clearly informed the grievant prior to his departure that he was not required to be in a standby duty status during the time on the island. Nor did the nature of the grievant's assignment definitely require the performance of standby duty. On the contrary, as indicated above, the Activity specifically estimated the time necessary to accomplish the generator repair assignment as requiring only regular work hours and provided for the payment of overtime in the event that any additional actual work might be necessary to complete the task. Thus, the requirement that standby duty must be officially ordered or definitely required by the employee's assignment was not met in the grievant's case. Consequently, the grievant was not entitled to overtime pay for standby time under 5 U.S.C. 5542(a). Accordingly, the Arbitrator's award of overtime compensation is contrary to 5 U.S.C. 5542(a) and is hereby set aside. Issued, Washington, D.C., August 9, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Authority also noted that the Comptroller General had reached the same conclusion concerning the interpretation and application of those provisions. See, e.g., 52 Comp.Gen. 794 (1973); 57 Comp.Gen. 496 (1978).