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55 FLRA No. 156
U.S. DEPARTMENT OF THE AIR FORCE
439TH AIRLIFT WING
WESTOVER AIR RESERVE BASE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3707
September 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority
I. Statement of the Case
This matter is before the Authority on exception to an award of Arbitrator Tim Bornstein filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exception.
The Arbitrator sustained the Union's grievance, finding that the Agency violated the parties' collective bargaining agreement ("agreement") when it charged employees eight hours of annual leave for days when they were away from their home station on long distance flights and were engaged in mandatory crew rest periods. Consequently, the Arbitrator ordered the Agency to restore the annual leave deducted from the employees, and pay those employees for the time that they had engaged in crew rest. For the following reasons, we find that the Agency's exception provides no basis for finding the award deficient. Accordingly, we deny the exception. [ v55 p946 ]
II. Background and Arbitrator's Award
A. Facts Giving Rise To This Grievance
The American Federation of Government Employees ("Union") represents a bargaining unit that includes Air Reserve Technicians ("ARTs") at Westover Air Force Base ("Agency"). The grievants are ARTs who are employed as crewmembers on aircraft and are sometimes required to participate in long distance flights that involve a stay of one or more nights at another location. Award at 3. On these occasions, ARTs are required to meet mandatory "crew rest" requirements before resuming flight duty. [n1]
Prior to the dispute in this case, the Agency's practice was to grant ARTs who were away from home on long distance flights 8 hours of "constructive credit" for days that they performed no work but were engaged in mandatory crew rest. Id. at 7. The Agency granted "constructive credit" pursuant to the August 26, 1983 Supplement to the Agency's Regulations (hereinafter "1983 Regulatory Supplement"). [n2] In pertinent part, the 1983 Regulatory Supplement states:
3h (Added). Long-Distance Flights. Tours of duty and attendance reporting for aircrew members on long-distance flights are as follows:
. . . .
(4) When on a scheduled workday and, through no fault of the employee, less than 8 hours of work are performed, the employee will be credited with 8 hours total duty. AFRES Form 4, Work Hours Report, will be annotated to reflect the number of hours actually worked and the number of hours of excusal from duty --called constructive credit hours -- on that day. Constructive credit hours will be used when computing regular hours but will not be utilized when computing overtime hours.
Award at 6-7. Employees who received constructive credit for hours that they engaged in crew rest were paid for those hours. [n3]
The basis for this grievance arose when the Agency refused to pay three ARTs for 8 hours of time that had been spent engaged in crew rest on the day following work on long distance, overnight flights. Their work consisted of the following circumstances: on September 14, 1995, two of the ARTs began work at their home station at 0730. They were sent on a long distance mission, first to Puerto Rico and then to Georgia, and were released at 0700 on September 15, 1995. The two ARTs then entered the mandatory crew rest period during that day and made their return trip starting at 0130 on September 16, 1995. The third ART, on September 15, 1995, began work at his home station at 1145, was sent on a long distance mission, and was released at 0545 on September 16, 1995. He entered the mandatory crew rest period during that day and reported back to work at 0430 on September 17, 1995.
On October 24, 1996, the Agency sent the Union a memorandum stating that it would pay the three ARTs overtime for hours they had worked after midnight on their respective long distance flights, but that it would not pay the ARTs for time they had engaged in crew rest on the day following those flights. [n4] Id. at 12. The Agency's position was that because the hours worked after midnight would be attributed to the first work day rather than the second, "there were no hours of work chargeable" to the second day. [n5] Id. Consequently, the Agency required the ARTs to elect to take "Annual Leave, Leave Without Pay, or Compensatory Time (if available)[,]" for the time that they were engaged in crew rest during the second day. Id. The Agency stated that if the ARTs refused to make an election, they would be charged annual leave. The three ARTs refused, and the Agency charged them each eight hours of annual leave for the dates in question. On November 24, 1996, the Union filed a "Union Grievance" on behalf of the three ARTs and any other employees affected by the Agency's action. Id. at 13, 20. [ v55 p947 ]
B. Arbitrator's Award
"[B]ased upon the evidence and arguments presented," the Arbitrator framed the issue as follows:
Did the Employer violate the collective bargaining agreement, Federal Law or regulations when it charged employees eight hours of annual leave for days when they were away from their home station on long distance flights and were engaged in mandatory crew rest periods?
If so, what shall be the remedy?
Award at 2.
After examining the record, the Arbitrator held that the Agency violated Article 3 and Article 5 of the parties' agreement when it deducted annual leave from the ARTs for their respective crew rest periods "because that action contradicted [the Agency's] past practice and published policy." [n6] Id. at 17.
In support for his findings, the Arbitrator noted that Article 3 of the agreement "places significant limits on the Employer's ability to change policies or practices affecting working conditions that are within its authority. The contract prohibits the Employer from making such a change without first notifying the Union and, upon request, negotiating with the Union." Id. at 16. Based upon "[t]he vast preponderance of the evidence[,]" the Arbitrator found that the Agency's past practice was to "grant employees eight hours of constructive credit for mandatory crew rest periods while they were away from their home station on long distance missions even if they performed no work on those days." Id. at 17.
The Arbitrator also noted that Article 5 of the agreement provides that the parties are governed by pertinent laws, regulations, and "published agency policies and regulations in existence at the time the grievance was approved." Id. at 17. In this regard, the Arbitrator found that the plain language of the 1983 Regulatory Supplement "required the Agency to grant . . . constructive credit" in this case. Id. Therefore, the Arbitrator determined that the Agency violated Article 5 by failing to follow the policy established by that Supplement.
The Arbitrator concluded that the Agency "has not cited any law or regulation that either explicitly or implicitly prohibits payment of employees for mandatory crew rest periods under the circumstances presented here." Id. at 19. The Arbitrator held that, "[i]n this situation, the employee[s] deserve[ ] compensation for performing services of value to the Agency and should not be compelled to use annual leave to be paid for the time." Id. at 20. Accordingly, the Arbitrator ordered the Agency to "restore the annual leave deducted from [the three ARTs]" and "grant each of those employees eight hours of constructive credit" for the dates at issue. Id. at 22. The Arbitrator further noted that, while the grievance had been filed as a class action, the only record evidence of harm to employees pertained to the three ARTs in this case. The Arbitrator retained jurisdiction in order to allow the parties to present evidence of harm to any additional employees who had lost annual leave as a result of the Agency's action.
III. Positions of the Parties
A. Agency's Exception
The Agency argues that the award is "contrary to law" because there is "no authority" to pay ARTs for time spent engaged in crew rest. Exception at 9-10. The Agency states that, after a review of its pay practices in mid-1995, it "unilaterally discontinued the practice of paying aircrew members for time spent in a crew rest status" because it "discovered" that "doing so was contrary to statute and federal regulation, see generally: 5 U.S.C. § 5442(a) [n7] and 5 C.F.R. § 551.431." [n8] Id. at 2. In addition, the Agency claims that the first three "Basic Principles" of pay administration, set forth in 5 C.F.R. § 551.401(a)(1)-(3), do not authorize payment for crew rest. Id. at 9.
In support for its argument, the Agency first cites to the AFI, ch. 7, ¶ 7.4.5, to show that ARTs are not in work status while engaged in crew rest. In this regard, the Agency points out that the AFI describes crew rest as "non-duty[,]" "free time" that "imposes no affirmative requirements on aircrew members." Id. at 4-5.
Second, the Agency contends that crew rest is not "standby duty" or "on-call status" as defined by 5 C.F.R. § 551.431. Specifically, the Agency states that 5 C.F.R. § 551.431(a)(1) requires employees on standby duty to be "restricted to an Agency's premises, or so close thereto that the employee cannot use time effectively for his or her own purposes." Id. at 5. The [ v55 p948 ] Agency claims that ARTs engaged in crew rest are "neither restricted to the agency's premises nor so close thereto as to restrict their activity . . . . " Id. at 6. The Agency also points out that 5 C.F.R. § 551.431(a)(2) states, in part, that standby duty will be considered hours of work if the employee "is required to be in a state of readiness to perform work." Id. at 6. The Agency claims that ARTs engaged in crew rest are not required to remain in a state of readiness to perform work and, instead, are not to be interrupted from their rest period. Id. at 5, 7. In support, the Agency cites National Federation of Federal Employees Forest Service Council and U.S. Department of Agriculture Forest Service, 45 FLRA 1204 (1992) (Forest Service) and National Amphibious Base Little Creek, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 445 (1984) (Little Creek). [n9]
Third, the Agency lists the first three "Basic Principles" of pay administration set forth in 5 C.F.R. § 551.401(a)(1)-(3), and then offers reasons explaining why "[c]rew rest doesn't qualify as `hours of work'" under these principles. Exception at 7. Specifically, the Agency argues that, as demonstrated by the AFI, employees engaged in crew rest are not required to be on duty; the Agency does not contact employees regarding work and employees are not permitted to work; and employees are not under the control of the Agency.
Fourth, the Agency analogizes this case to Forest Service, 45 FLRA 1204, and Little Creek, 15 FLRA 445, where, according to the Agency, the Authority held that employees cannot be paid for "crew rest type" situations. Id. at 8.
In sum, the Agency asserts that "[b]ecause crew rest is not duty time, is not standby duty, and is not otherwise `hours of work,' that portion of the Award requiring the [Agency] to grant constructive credit for crew rest . . . is contrary to law and must be set aside as deficient." Id. at 10.
B. Union's Opposition
The Union asserts that the Authority should "dismiss [ ] or deny" the exception because the Agency has failed to cite to any law violated by the award. See Opposition at 5. As authority, the Union cites American Federation of Government Employees, AFL-CIO, Local 916 and United States Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 48 FLRA 336 (1993).
Next, the Union claims that the award is "consistent with federal regulations." Opposition at 6. In this regard, the Union contends that "[c]onstructive credit hours under Air Force Reserve regulations is a form of administrative leave" that "allow[s] payment to employees" engaged in crew rest. Id. at 7. In support, the Union cites to the Agency's 1983 Regulatory Supplement. The Union also contends that 5 U.S.C. § 6104, and its implementing regulations located at 5 C.F.R. §§ 610.301-306, authorize the Agency to grant administrative leave to employees for time spent engaged in crew rest. [n10] In support, the Union cites U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and International Federation of Professional and Technical Engineers, Planners, Estimators, Progressmen & Schedulers Association, Local 5, 48 FLRA 1372 (1994) (Mare Island). [n11] The Union claims that these regulations "allow the Petitioner to comply with the Arbitrator's award without classifying mandatory flight crew rest as standby-time." Opposition at 7.
The Union also claims that the Arbitrator's interpretation of the Agency's regulations does not conflict with the plain language of the regulations. Opposition at 6-7. In this connection, the Union claims that the Authority should defer to an arbitrator's judgment when agency regulations are incorporated into the contract. As authority, the Union cites Panama Canal Commission and International Association of Firefighters, Local 13, 41 FLRA 284 (1991). [ v55 p949 ]
Finally, the Union claims that "an argument can be made that mandatory flight crew rest constitutes `hours of work' under the third `Basic Principle' listed in 5 CFR § 551.401[,] `[w]aiting time or idle time which is under the control of an agency and which is for the benefit of an Agency.'" Opposition at 7-8. In closing, the Union requests that the Authority affirm the Arbitrator's finding that the Agency violated the parties' contract when it did not bargain over a change in past practice.
IV. Analysis and Conclusions
The Agency's exception alleges that the award is "contrary to law" because there is "no authority" to pay ARTs for time spent engaged in crew rest. Exception at 9-10. An exception alleging that an award is contrary to law is reviewed by the Authority de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Our review of the Agency's 1983 Regulatory Supplement shows that the Agency's practice of paying ARTs for time spent engaged in crew rest is a method of excusing ARTs from duty: "When on a scheduled workday and, through no fault of the employee, less than 8 hours work are performed, the employee will be credited with 8 hours total duty . . . . the number of hours of excusal from duty [are] called constructive credit hours . . . . " Award at 6-7 (emphasis added). On this record, we find that the Agency's practice of excusing ARTs from duty in order to engage in crew rest is, in essence, a method of granting ARTs administrative leave. See, e.g., American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 895 (1986) (Proposal 15) (administrative leave is "a term used to refer generally to absence from duty administratively authorized without charge to leave or loss of pay") (FDIC Madison).
The Authority has long recognized that agencies have discretion to excuse employees from duty for brief periods of time. See FDIC Madison, 21 FLRA at 894-99 (listing cases where the Authority has found that agency heads have discretion to excuse employees from duty for brief periods of time). See also Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1576-1580 (1996) (respondent had discretion to grant brief periods of excused absence in connection with employee birthdays). In this case, the Arbitrator's finding that the employees were entitled to be paid for the time spent in crew rest is tantamount to a finding that the employees were entitled to administrative leave.
The Comptroller General has also recognized that agencies have discretion to excuse employees from duty for brief periods of time, without charge to leave or loss of pay, in order to rest after long distance flights. See, e.g., In the Matter of the Fly America Act -- Hours of Travel, 56 Comp. Gen. 629 (May 19, 1977) (Fly America). In Fly America, the Comptroller General held that employees traveling on long distance flights between the hours of midnight and 6 A.M. "may be granted a brief period of administrative leave . . . for `acclimatization rest'" at the destination point. Id. at 629. The Comptroller General defined "acclimatization rest" as "administrative leave for rest purposes." Id. at 633. The Comptroller General recognized that, although "the scope of authority for granting time off without charge to leave . . . is not clearly defined in law . . . the granting of administrative leave for brief periods of time is within the discretion of the agency . . . . " Id. Therefore, the Comptroller General concluded that the Agency had "adequate authority" to "excuse employees from duty" in order to engage in acclimatization rest. Id. Accord Administrative Leave, 55 Comp. Gen. 510 ("The granting of administrative leave to an employee for acclimatization rest . . . is a proper exercise of administrative authority."). According to the Comptroller General, the ruling in Administrative Leave, followed by Fly America, "is a recognition of the [g]overnment's concern for the health and well-being of employees who are required to travel during hours that would otherwise be allocated to sleep." Fly America at 633.
We conclude that, under the circumstances presented here, the Agency has not demonstrated that it has no authority to pay ARTs for time spent engaged in crew rest. While we have considered the Agency's regulatory arguments, we find no merit to them in view of the Agency's discretion discussed above. Accordingly, the exception provides no basis for finding the award deficient.
The Agency's exception is denied. [ v55 p950 ]
Air Force Instruction 11-401, March 1, 1996, provides in pertinent part:
Chapter 7 CREW REST AND FLIGHT DUTY LIMITATIONS
7.1 Background Information. This chapter explains how rest periods and maximum flying hours for aircrew members in Air Force aircraft are prescribed. It applies to all personnel who operate US Air Force aircraft.
. . . .
7.4.5 Crew Rest Period. The crew rest period is the non-duty period before the flight duty period begins. Its purpose is to allow aircrews the opportunity to get adequate rest before performing in-flight duties. Crew rest is free time, which includes time for meals, transportation, and rest. Rest is defined as the condition which allows an individual the opportunity to sleep. Air Force aircrews require at least 8 hours of uninterrupted rest during the 12 hours immediately prior to the beginning of the flight duty period. These 8 hours of uninterrupted rest must be continuous. When an aircrew member remains at the airfield after flying to perform official duties, the crew rest period begins after termination of these duties.
220.127.116.11 Crew Rest Interruptions.
18.104.22.168.1 Official. Any official business required of an aircrew member interrupts the crew rest period. This includes official business conducted on the telephone. If, during the twelve hour period, crew rest is interrupted so that an individual cannot get 8 hours of uninterrupted rest, the individual must be afforded 8 more hours of uninterrupted rest, plus reasonable time to dress, eat, travel, etc. It is not the intent of the crew rest policy to authorize routine interruptions of the crew rest period. Any interruption must be made only under the most exceptional circumstances.
22.214.171.124.2. Unofficial. Interruptions that are unofficial must be considered by the individual so that the intent of crew rest is met.
126.96.36.199 Responsibilities . . . . When crew rest is violated for an individual, it is the members' responsibility to inform their supervisor and remove themselves from the flight schedule until the above conditions are satisfied.
Award at 4-6.
Article 3 of the parties' agreement, APPROPRIATE MATTERS, provides:
Section 1. The Employer agrees not to change or implement personnel policies, practices and matters affecting working conditions which are within the Employer's authority, without prior notification to the Union. If, after being notified of any proposed change, the Union does not exercise its right to negotiate within 15 calendar days, management has the right to implement the change. If the parties negotiate and are unable to fully resolve the matter, the change will not be implemented; unless compelling need is demonstrated, and the services of a mediator will be requested. It is further agreed that all such matters will relate to policy determinations and not day-to-day operations and individual dissatisfactions.
Section 2. The Employer and Union Representative shall meet and negotiate on the impact and implementation of personnel policies, practices, and matters affecting working conditions that are not within the scope of the Employer's authority.
Article 5 of the parties' agreement, PROVISIONS OF LAWS AND REGULATIONS, provides:
In the administration of all matters covered by this Agreement, officials and employees are governed by existing or future laws and regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual (FPM); by published agency policies and regulations in existence at the time the Agreement was approved; and by subsequently published agency policies and regulations required by law or by the regulations of appropriate authorities.
Award at 2-3.
Footnote # 1 for 55 FLRA No. 156
"Crew rest" is defined by the Air Force as a period of at least eight hours of mandatory, uninterrupted rest for aircrews during the twelve hours immediately prior to the beginning of a flight duty period. See Air Force Instruction 11-401, March 1, 1996 (hereinafter "AFI"), ch. 7, ¶ 7.4.5, set forth in the Appendix to this Decision.
Footnote # 2 for 55 FLRA No. 156
Footnote # 3 for 55 FLRA No. 156
The Arbitrator and the Agency at various times state that the Agency's practice was to "pay," "compensate," or "grant constructive credit" to ARTs for time that they spent engaged in mandatory crew rest periods on long distance flights away from their home station. Upon review of the record, and as explained below, we find that the Agency's practice was to excuse ARTs from duty and to grant them pay under those specific circumstances.
Footnote # 4 for 55 FLRA No. 156
Footnote # 5 for 55 FLRA No. 156
Footnote # 6 for 55 FLRA No. 156
Footnote # 7 for 55 FLRA No. 156
We construe the Agency's citation to 5 U.S.C. § 5442 as a typographical error intended to be to 5 U.S.C. § 5542. It is not necessary for us to further address 5 U.S.C. § 5542 because the Agency's exception does not rely on this provision.
Footnote # 8 for 55 FLRA No. 156
Footnote # 9 for 55 FLRA No. 156
As relevant here, Forest Service applies to standby pay for nonexempt employees under the FLSA, while Little Creek applies to standby pay for exempt employees under Title 5 of the United States Code. We note that the FLSA and Title 5 both pertain to the accumulation of hours of work for purposes of overtime pay. The FLSA generally covers employees, with certain exemptions to that coverage. See 5 C.F.R. § 551.203-207. Employees exempted from FLSA coverage are entitled to overtime pursuant to 5 U.S.C. § 5542. Employees entitled to overtime pay under the FLSA are not also entitled to overtime pay under Title 5. See 5 C.F.R. § 550.101(c). Because the issue in this case does not relate to the payment of overtime, there is no need for us to discuss these provisions further.
Footnote # 10 for 55 FLRA No. 156
5 U.S.C. § 6104 provides authority for Federal agencies to grant excused absences to employees without charge to leave (commonly called administrative leave), applicable only to daily, hourly and piece work employees, e.g., wage board employees. See, e.g., In the Matter of Administrative Leave, 55 Comp. Gen. 510, 511 (November 26, 1975) (Administrative Leave). The implementing regulations for this provision are set forth at 5 C.F.R. §§ 610.301-306
Footnote # 11 for 55 FLRA No. 156
In Mare Island, the grievants were hourly employees falling under the purview of 5 C.F.R. §§ 610.301-306. Under the facts of the instant case, it is unclear whether ARTs are salaried (General Schedule) employees, or are hourly employees. Given our analysis below, it is not necessary to resolve this matter.