[ v57 p296 ]
57 FLRA No. 63
U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER, ST. LOUIS, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 96
June 26, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1]
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Michael D. Gordon filed by the Agency under § 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 exception.
For the following reasons, we find that the Agency has failed to establish that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the exception.
II. Background and Arbitrator's Award
The grievant was required to wear a pager in order to respond to after-hours emergencies. After he performed this duty for several years, the Agency began to pay him on-call pay, but later removed him from the call list. Award at 6.
The Union filed a grievance seeking pay under Article 20, § 5(E) of the parties' agreement (hereinafter, § 5(E)) for the years when the grievant was on call. [n2] The grievance was unresolved and proceeded to arbitration where the Arbitrator considered the following [ v57 p297 ] issues: Is [the g]rievant entitled to on-call pay; and, if so, what is the appropriate remedy . . . ? Id. at 2.
The Arbitrator concluded that the grievant was entitled to pay under § 5(E) of the parties' agreement because § 5(E) unequivocally says that employees may not be required to wear and respond to pagers unless they are in pay status. Id. at 10. The Arbitrator found that § 5(E) influences the circumstances involved in employee assignments so [employees] will meet conditions for entitlement to compensation and that the parties' reference to pay status in § 5(E) was synonymous with the regulatory definition of standby status in 5 C.F.R. § 551.431. [n3] Id. at 10-11. The Arbitrator agreed with the Agency that the grievant would not be entitled to pay solely under § 551.431, but found that the parties' collective bargaining contract entitl[ed] him to pay. Id. at 9.
The Arbitrator found that § 5(E) was enforceable consistent with the Authority's decision in AFGE, Council of Marine Corps Locals (C-240), 39 FLRA 773 (1991), aff'd sub nom. United States Dep't of the Navy v. FLRA, 962 F.2d 1066 (D.C. Cir. 1992) (AFGE), and by requiring the grievant to wear a pager without compensating him, the Agency had violated this provision. Finding that the violation was an unwarranted and unjustified personnel action under the Back Pay Act, the Arbitrator awarded the grievant backpay with interest.
III. Positions of the Parties
1. Agency's Exception
The Agency asserts that the award is contrary to law. In particular, the Agency claims that the grievant cannot be entitled to pay under § 5(E) of the parties' agreement because the Arbitrator found that the grievant did not meet the regulatory criteria for pay under 5 C.F.R. § 551.431(b)(1). The Agency also disputes the Arbitrator's reliance on AFGE, and claims that under AFGE, the grievant may not be paid. [n4]
2. Union's Opposition
The Union claims that the award is not deficient. According to the Union, the Agency entered into a contract and they must abide by the contract. Opposition at 2.
IV. Analysis and Conclusions
When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
In concluding that the Agency's failure to pay the grievant violated § 5(E), the Arbitrator relied on AFGE. In that case, the Authority found negotiable a proposal that required an agency to place employees in a pay status whenever they were required to carry or respond to beepers. As relevant here, the Authority, concluding that the proposal was not inconsistent with § 551.431, explained that standby status is based on the extent to which an employee's freedom of movement and activity are restricted and not on whether the employee is required to carry a beeper. AFGE, 39 FLRA at 778. The Authority concluded that the proposal left intact the agency's discretion to restrict employees' movement and activity in order to qualify them for standby pay, and as such, did not require the agency to pay employees merely for carrying and responding to beepers. Id. at 779.
Citing and relying on AFGE, the Arbitrator stated that § 5(E) influences the circumstances involved in employee assignments so they will meet conditions for entitlement to compensation. Award at 11. That is, the Arbitrator found that, by agreeing to § 5(E), the Agency agreed to exercise its discretion to place on the grievant whatever restrictions were necessary to entitle him to pay, whenever he was required to carry and respond to a pager.
Consistent with the foregoing, the Agency's reliance on the requirements for pay under § 551.431 is misplaced. Indeed, since § 5(E) required the Agency to take actions necessary to permit the grievant to be paid, the Agency's insistence that the grievant did not meet the regulatory criteria for pay confirms -- not excuses -- [ v57 p298 ] its violation of § 5(E). As the Arbitrator found that the grievant would have been paid had the Agency not violated § 5(E), the award of standby pay is not deficient. See, e.g., United States Dep't of Veterans Affairs Med. Ctr., Coatesville, Penn., 56 FLRA 829, 834 (2000) (award of overtime compensation not deficient where employees did not perform overtime work but would have worked overtime had agency not violated agreement) (VAMC). [n5]
Based on the foregoing, we conclude that the Agency has failed to demonstrate that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Agency's exception.
Dissenting Opinion of Chairman Cabaniss:
I respectfully dissent from my colleagues as to whether this award impermissibly conflicts with 5 C.F.R. § 551.431. For the reasons that follow, I would set aside the award based upon the parties' failure to comply with that regulation's requirements.
There is no doubt that parties have the ability to negotiate the provision in question, as the United States Dep't of the Navy v. FLRA case cited in the majority opinion points out. That opinion, however, does not provide that an agency can legally make payment to an employee whose actions do not fulfill the requirements of the regulation. To the contrary, the court expressly acknowledged that an agency's options with such provisions are to either levy sufficient restrictions on an employee to qualify him or her for payment under the C.F.R. provisions, or not have the employee stay at home or wear the beeper. Dep't of the Navy v. FLRA, 962 F.2d 1066, 1068-69 (D.C. Cir. 1992). There is nothing in that decision that justifies or permits paying an employee in violation of 5 C.F.R. § 551.431, and I am aware of no way that either the parties or the Arbitrator can waive the regulatory prerequisites to be considered in a duty status.
Here the Arbitrator acknowledged that the proposed payment to the grievant did not comply with the requirements of the regulation (Award at 9), but found a contractual duty to pay, even though the requirements of the statute (and implementing regulation) were not met. With this conclusion I disagree. While there is nothing in the provision itself that conflicts with 5 C.F.R. § 551.431, neither the parties nor the Arbitrator have the ability to enforce the provision in such a manner that the application of the provision violates these C.F.R. regulations. I see no way that a violation of the provision here can justify requiring a payment that federal regulation clearly prohibits.
Given the regulatory requirements, a cease and desist order by the Arbitrator to the Agency would be appropriate, to require the Agency to either place sufficient restrictions on employees to warrant them receiving pay under the regulations to not require them to stay at home or wear beepers, but none of that would result in payment. Again, and as noted by the court, the requirement of such a provision is either to compel the Agency to do enough to qualify the employees for payment, or not have the employees stay home or wear pagers. A remedy for violating the provision would be to do just that, rather than violate mandatory regulations defining when an employee is or is not in a duty status.
For those reasons, therefore, I would set aside the award as being contrary to 5 C.F.R. § 551.431 because these employees have not fulfilled the regulatory requirements for being in a duty status.
Footnote # 1 for 57 FLRA No. 63
Footnote # 2 for 57 FLRA No. 63
Footnote # 3 for 57 FLRA No. 63
[F]or work-related reasons, the employee is restricted . . . to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee's activities so substantial that the employee cannot use the time effectively for his or her own purposes.
Footnote # 4 for 57 FLRA No. 63
We note the Agency's claim that, in interpreting § 5(E), the Arbitrator ignor[ed] § 5(F) of the parties' agreement, which states that participation in nonpaid, on-call status shall be voluntary. Exception at 4. As we do not construe this statement as raising a separate, essence claim, we will not address the assertion further.
Footnote # 5 for 57 FLRA No. 63
We agree with our dissenting colleague that the court in Dep't of the Navy v. FLRA gave two options by which an agency may comply with a provision like the one here. In particular, an agency may either: (1) place necessary restrictions on employees to qualify them for pay, or (2) drop the beeper plan altogether. Dep't of the Navy v. FLRA, 962 F.2d at 1069. We also agree that the Agency in this case did not exercise either of those options and, instead, required the grievant to carry a pager without restricting him according to the regulations. However, in concluding that the award in this case is deficient, the dissent has missed the point of Dep't of the Navy. In this regard, Dep't of the Navy unquestionably stands for the proposition that provisions such as § 5(E) -- which require payment for carrying pagers but permit an agency to impose on employees whatever restrictions are necessary to make such payment permissible under applicable regulations --are enforceable in arbitration. The Agency in this case violated § 5(E). As with the failure to pay overtime in VAMC, the fact that the grievant did not carry a pager under conditions satisfying the regulatory requirements -- a situation attributable entirely to the Agency's failure to comply with § 5(E) -- does not affect his right to compensation for being wrongly denied the opportunity to do so. The dissent's conclusion to the contrary simply rewards the Agency for its violation of the parties' agreement. Nothing in law or common sense dictates this result.