15:0445(91)AR - Naval Amphibious Base, Little Creek, Virginia and Tidewater Virginia FEMT Council -- 1984 FLRAdec AR

 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).