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42:0787(51)NG - - AFGE Local 1867 and Air Force Academy, CO Springs, CO - - 1991 FLRAdec NG - - v42 p787

[ v42 p787 ]
The decision of the Authority follows:

42 FLRA No. 51





LOCAL 1867









October 4, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The proposal seeks overtime compensation for specified employees. For the reasons that follow, we conclude that the proposal does not present an issue that is appropriate for resolution in the context of a negotiability appeal.

II. The Proposal

Union's Proposal LG/CE Standby/Recall Issue

Management will compensate employees up to 25% of annual salary, to include back pay, for year November 1989 to present time.

III. Background

This proposal concerns two of the mission-support organizations at the Agency: (1) Civil Engineering (CE), which is responsible for the physical maintenance of the buildings on the Agency's property; and (2) Logistics (LG), which is responsible for all surface transportation activities. The employment complement of the two organizations consists of both military and civilian personnel. This proposal applies to civilian employees who are prevailing rate employees and who are nonexempt from the Fair Labor Standards Act, as amended (FLSA).

Prior to November 1989 only military personnel had been responsible for performing emergency repair work on a standby or on-call basis(1) during off-duty hours. In November 1989, the Agency implemented a requirement that civilian employees in CE be available to perform emergency repair work during off-duty hours. More recently, the Agency announced its intention to institute a similar practice with respect to LG employees. However, the practice has not yet been implemented within LG.

IV. Positions of the Parties

A. The Agency

The Agency contends that the purpose of the proposal is to obtain compensation for CE employees for time spent in an on-call status. The Agency asserts that by claiming that compensation is due, the Union is charging that the Agency has acted contrary to the statutory provisions that govern overtime compensation for the subject employees; specifically, it cites 5 U.S.C. § 5544 and the FLSA. Accordingly, the Agency contends that the proposal constitutes a grievance and is not a matter that is subject to negotiations. As such, the Agency argues that the issue should be resolved in an appropriate proceeding and that the negotiability appeal should be dismissed.

The Agency also contends that the proposal is inconsistent with law and Government-wide regulation. In addition to 5 U.S.C. § 5544 and the FLSA, the Agency cites as a governing authority the Office of Personnel Management (OPM) regulations that implement the FLSA, which are found at 5 C.F.R. Part 551. The Agency asserts that the restrictions placed on the activities of employees while in on-call status are not sufficient to meet the legal and regulatory requirements for overtime compensation. Specifically, the Agency claims that CE employees in on-call status merely have to leave a telephone number where they can be reached during non-duty hours or carry an electronic beeper. The Agency also states that it allows for volunteers and permits exceptions based on personal needs occurring at the time. Consequently, the Agency asserts that overtime compensation under the circumstances involved would be inconsistent with 5 U.S.C. § 5544 and 5 C.F.R. § 551.431. The Agency further contends that the proposal is inconsistent with 5 U.S.C. § 5544 and 5 C.F.R. § 551.512 because it would establish the rate of overtime compensation at up to 25 percent of annual salary, while those governing authorities establish that rate at one and one-half times an employee's basic hourly rate.

The Agency contends that the proposal cannot be construed to be a procedure or an appropriate arrangement within the meaning of section 7106(b)(2) and (3) of the Statute because the proposal does not address any management rights and the Union has failed to demonstrate that it constitutes such a procedure or an arrangement.

B. The Union

In its petition, the Union explains the proposal is intended to require the Agency to compensate employees of its CE and LG components "for time spent in a standby status for the period covered by the proposal." Petition at 2. It states that "'present time' refers to any point at which a final decision on the proposal's negotiability and substance is reached." Id.

The Union requests that the Authority bifurcate its decision and address the two groups of employees to which it applies, i.e., the CE group and the LG group, separately. The Union also requests that the Authority base its decision on the record that has been created by the parties. Specifically, the Union states that inasmuch as the Agency does not argue that the disputed proposal directly interferes with a management right under section 7106 of the Statute, it is unnecessary to determine whether the proposal constitutes an appropriate arrangement. Additionally, the Union requests that, should the Authority determine that portions, but not all, of the proposal are negotiable, the Authority "sever such portions . . . as can stand alone for purposes of negotiability." Union reply brief at 8.

The Union contends that burdens and restrictions placed on employees who are "on-call" are far more stringent than those portrayed by the Agency. According to the Union, the Agency requires employees to make themselves available to respond to after-hours calls from the Agency and requires them to report to the Agency within 1 hour after notification. The Union contends that the Agency also requires that employees remain within hearing distance of their telephone when "on-call." The Union states that the Agency requires employees who have no home telephone to provide the telephone number of a neighbor who can relay messages. The Union states that although the Agency offers the use of a "beeper," such devices are useless for some employees because of mountainous terrain. Acknowledging that differences exist between its account of the circumstances surrounding the "on-call" policy and that of the Agency, the Union asserts that the Agency is "soft-pedaling the stringency of the changed policy" and that the Agency's characterization "is designed to defeat entitlement to overtime pay" and lacks "credibility." Id. at 6-7.

The Union disputes the Agency's contention that the proposal conflicts with law and regulation. The Union states that while the proposal does not "expressly address either Title 5 or the FLSA," it "implicitly intends that the Agency will take such actions as it lawfully is able to take, within its discretion, to accomplish the compensation required by the proposal." Id. at 9. Thus, the Union states "despite the brevity of the proposal, AFGE's intent is that the proposal be administered in accordance with all relevant provisions of law and [G]overnment-wide regulations, regardless of whether or not the criteria such law and regulation establish are expressly identified in the proposal." Id. at 9-10.

The Union states that the employees who are subject to this proposal would have their overtime entitlement computed under whichever overtime authority, title 5 or FLSA, provides the greatest entitlement.(2) As to title 5, the Union claims that the relevant implementing regulations are 5 C.F.R. §§ 550.141-550.144.(3) The Union contends that under these regulations, the Agency has the discretion to arrange the circumstances surrounding the employee's assignment to "on-call" duty so that the employee could meet any regulatory requirements for compensation that they do not already meet.  As to FLSA, the Union contends that based on the requirements and restrictions that the Agency places on employees who are "on-call" that limit their freedom of movement, the employees meet requirements established by OPM for entitlement to overtime compensation.

The Union asserts that the fact that the matter that is the subject of the proposal may be grieved does not relieve the Agency of its obligation to bargain over the proposal. The Union argues that its petition meets the conditions for review of a negotiability issue because it concerns an issue of whether its proposal is consistent with law and Government-wide regulation.

V. Analysis and Conclusions

Initially, we address the interpretation of the proposal. This proposal, as written, states that certain employees are entitled to overtime compensation for time spent in "on-call" status for the period of "November 1989 to present time." The only definition of "present time" that the Union provides is "any point at which a final decision on the proposal's negotiability and substance is reached." Petition at 2. As written, the proposal would not have a prospective effect but, rather, addresses compensation only for activity occurring from November 1989 to the point at which a final decision is reached on the negotiability and substance of the proposal. Thus, the proposal by its terms applies only to events that would have already transpired at the point at which it is executed.

The fact that the heading of the proposal contains a reference to LG employees does not warrant a different interpretation. At the time the proposal was made, the Agency had announced its intention to extend the "on-call" policy to the LG employees; however, the Agency states that it has refrained from implementing that policy with respect to the LG employees. While this heading could, in the context of these circumstances, be read to suggest that a prospective application is intended, this does not overcome the fact that the proposal itself is written solely in terms that limit it to retroactive application.

In its reply brief the Union interprets the proposal as including the implicit recognition that the Agency may take whatever steps are within its discretion to ensure that the employees meet the legal and regulatory requirements for overtime compensation. The proposal itself contains no language that sets forth or even alludes to the particular measures that the Union has in mind. Rather, the proposal as written is limited to setting forth a requirement that employees be compensated, without conditioning that compensation on any legal or regulatory prerequisites. Significantly, however, under governing legal and regulatory authorities, entitlement to overtime compensation for waiting periods is dependent on the facts and circumstances involved in each case. See, for example, Skidmore v. Swift & Co., 323 U.S. 134 (1944); Bowman v. United States, 7 Cl. Ct. 302 (1985); 5 C.F.R. § 551.431; FPM Letter 551-14. As we stated above, the proposal is written solely in terms that limit it to retroactive application. Adopting the Union's interpretation would mean that if employees have not met the conditions for entitlement to compensation based on the facts and circumstances of their "on-call" duty, compensation would be permitted only if the Agency could change past events. Of course, it cannot do this. In other words, attaching the Union's interpretation to a proposal that is limited to a retroactive effect would make no sense. Therefore, we reject the Union's interpretation as inconsistent with the proposal as written. See, for example, National Association of Agricultural Employees and U.S. Department of Agriculture, Western Regional Office, Sacramento, California, 40 FLRA 1138, 1141 (1991) (we do not base a negotiability determination on a statement of intent that is inconsistent with a proposal's plain wording).

Although presented by the Union as a proposal for bargaining, the proposal is, in essence, a claim for overtime compensation for events that have already occurred. Under the governing legal and regulatory authorities, in this case 5 U.S.C. § 5544 and 5 C.F.R. Part 551, if employees meet the conditions for eligibility for compensation they are entitled to payment. That entitlement is dependent on whether the employee meets the governing legal and regulatory conditions for compensation.

Based on the record in this case, what is involved here is a dispute over whether employees meet the conditions for entitlement to compensation for "on-call" duty already completed.(4) This type of claim is not appropriate for resolution as a negotiability issue, but rather, should be resolved in other appropriate proceedings, for example, the parties' negotiated grievance procedure.(5)

This proposal is distinguishable from proposals that seek to influence the circumstances involved in employees' assignments so that they will meet the conditions for entitlement to compensation. For example, American Federation of Government Employees, Council of Marine Corps Locals (C-240) and U.S. Department of the Navy, United States Marine Corps, Washington, D.C., 39 FLRA 773 (1991), petition for review filed sub nom. United States Department of the Navy, United States Marine Corps, Washington, D.C. v. FLRA, No. 91-1182 (D.C. Cir. Apr. 18, 1991) (negotiable proposal, as worded, provided only that employees "will not be required to carry . . . 'beepers' unless they are in a duty and pay status" and did not address compensation for events that had already transpired). It is also distinguishable from proposals that merely ensure that employees will be compensated if a proper determination has been made in an appropriate proceeding that they are indeed entitled to compensation. For example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 38 FLRA 928, 931-33 (1990) (negotiable proposal that employees receive backpay was conditioned on a determination made in the context of the parties' negotiated grievance procedure that employees were entitled to backpay).

We also conclude that the circumstances involved in this case are distinguishable from those addressed in American Federation of Government Employees v. FLRA, 715 F.2d 627 (1983). In that case, as pointed out by the court, the petition involved raised a negotiability issue in addition to separable factual issues. 715 F.2d at 630 and n.5. Thus, the court vacated the Authority's decision, which held that the existence of factual disputes required that the entire dispute be processed through procedures other than the negotiability review procedures. Here, the issue raised is not a negotiability issue, but concerns only a claim that employees are entitled to compensation for overtime for "on-call" duty that has already transpired. Consequently, this proposal, as written, does not involve a matter that is properly resolved through the negotiability procedures. See, for example, International Federation of Professional and Technical Engineers, Local 11 and Mare Island Naval Shipyard, Vallejo, California, 32 FLRA 380, 383 (1988) (questions concerning interpretation of provisions in the parties' collective bargaining agreement are not properly resolved through negotiability procedures, but rather, should be resolved in other appropriate proceedings); American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 775 (1987) (the unit status of employees is not a matter that is properly resolved through the negotiability procedures).

To the extent that our decision in National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513 (1990), suggests that we will rule, in the context of negotiability procedures, on claims that employees are entitled to overtime compensation for work already performed, it will no longer be followed.

VI. Order

The petition for review is dismissed.

(If blank, the decision does not have footnotes.)

1. The parties lack a consensus as to whether the waiting periods involved in this case should be characterized as "standby" or "on-call." In view of the result reached in this case, we make no determination as to the correct characterization of the waiting periods involved. However, purely for the sake of convenience in this decision we will refer to the waiting periods as "on-call."

2. We note that this dual entitlement has been eliminated by the Federal Employees Pay Comparability Act of 1990. Section 529 of Pub. L. No. 101-509. Effective May 4, 1991, overtime pay for employees who are covered by FLSA is computed and paid only under the FLSA. See 56 Fed. Reg. 20339 (1991).

3. The Union concedes that the employees to whom this proposal applies are "wage grade" or prevailing rate employees. Id. at 2. The regulations set forth at 5 C.F.R. §§ 550.141-550.144 do not apply to prevailing rate employees. 5 C.F.R. § 550.101(b)(4). Thus, the Union's reliance on these regulations is misplaced.

4. We make no judgment as to whether, based on the facts as presented by the Union, the employees would be entitled to overtime pay.

5. See Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990), cert. denied 111 S. Ct. 46 (1990) (where overtime pay disputes are not excluded from a negotiated grievance procedure, employees covered by that procedure are precluded from maintaining suit in Federal court for overtime pay under the FLSA).