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58 FLRA No. 59
DEPARTMENT OF THE ARMY
EVANS ARMY COMMUNITY HOSPITAL
FORT CARSON, COLORADO
OF GOVERNMENT EMPLOYEES,
December 23, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Bennett S. Aisenberg 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 Agency's exceptions.
The Arbitrator found that the grievants are entitled to standby pay for certain time spent on-call. For the following reasons, we set aside the award as inconsistent with 5 C.F.R. § 550.141.
II. Background and Arbitrator's Award
The Agency began requiring the grievants, who are exempt from the Fair Labor Standards Act (FLSA), to be on-call during certain hours. A grievance was filed alleging that the Agency violated Article 8, Section 8(c) of the parties' agreement by failing to pay the grievants standby pay for the time spent on-call. [n1] When the grievance was unresolved, it was submitted to arbitration, where the parties stipulated the issues, in pertinent part, as follows: "Did the Agency violate Article 8, Section 8(c) of the Negotiated Agreement by placing the grievants on an on[-]call status," and if so, "what is the appropriate remedy?" Award at 7.
The Arbitrator found that the grievants are not entitled to standby pay under the applicable regulation, 5 C.F.R. § 550.141 (§ 141), because the time spent on-call does not satisfy the requirements in 5 C.F.R. § 550.143(b)(3) (§ 143(b)(3)). [n2] In this connection, the Arbitrator found that the Agency has not designated the employees' living quarters as their duty stations and employees are permitted to "leave their quarters under appropriate circumstances," specifically, if they either arrange for someone else to respond to phone calls or leave a phone number at which they can be reached. Id. at 10. The Arbitrator rejected the Union's reliance on decisions interpreting the FLSA, on the ground that the FLSA does not apply to the grievants. [ v58 p245 ]
The Arbitrator found that, "were [the regulatory requirements] the end of the matter, [he] would reject the grievances." Id. at 12. However, the Arbitrator found that he was required to determine whether the grievants were entitled to pay under Article 8, Section 8(c) of the parties' agreement, which he found is less restrictive than §§ 141 and 143. The Arbitrator determined that Article 8, Section 8(c) authorized standby pay to the grievants because the employees are "effectively limited" (and thus "restricted") to their living quarters, have their activities substantially limited, and are required to remain in a state of readiness to perform work. Id. at 13. The Arbitrator also determined that Article 8, Section 8(d) did not support a contrary conclusion because the employees are not within a reasonable call-back radius and "in effect" do not have the option of exchanging duties with other employees due to the fact that it has been "almost impossible" for them to get other employees to do so. Id.
Based on the foregoing, the Arbitrator sustained the grievance. In so doing, he stated that he "must . . . abide by" the agreement rather than the pertinent regulations, but that "[i]f any reviewing authority concludes that . . . the Code of Federal Regulations takes precedence" over the agreement, "then the Arbitrator's decision should be reversed." Id. at 14.
III. Positions of the Parties
A. Agency's Exceptions
The Agency argues that the award is contrary to §§ 141 and 143 because the Arbitrator made factual findings that the grievants are not restricted to their living quarters and that the Agency has not designated their living quarters as their duty stations. The Agency also argues that the parties' agreement "does not supersede" the pertinent regulations, because those regulations were promulgated before the parties' agreement became effective. Exceptions at 8. Finally, the Agency asserts that the award fails to draw its essence from the parties' agreement because the Arbitrator erred in finding that the employees were not within a reasonable callback radius and that the grievants did not have the opportunity to trade on-call duties with other employees.
B. Union's Opposition
The Union asserts that the Arbitrator's finding that the grievants were "restricted to" their living quarters is equivalent to an Agency "designation of" those quarters as the grievants' duty stations. Opposition at 2. According to the Union, the Arbitrator's factual findings support a conclusion that the regulatory requirements have been met. Further, the Union argues that the agreement and the regulations do not "conflict," but are "simply not identical." Id. at 4. Finally, the Union disputes the Agency's essence argument.
IV. Analysis and Conclusion
Because the Agency challenges the award's consistency with government-wide regulations, the Authority reviews de novo the legal questions presented. AFGE, Local 1897, 51 FLRA 1290, 1291 (1996) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
The Agency argues that the award of standby pay is contrary to § 141, which authorizes agencies to pay employees standby pay if the employees are in "position[s] requiring [them] regularly to remain at, or within the confines of, [their] duty station[s] during longer than ordinary periods of duty." In order to meet this requirement, "the employee[s] must be officially ordered to remain at [their] station[s]." § 143(a). Accord Huskey v. Trujillo, 302 F.3d 1307, 1311 (Fed. Cir. 2002) (Huskey); United States Dep't of the Navy, Naval Air Station, Corpus Christi, Tex., 36 FLRA 935, 940 (1990). Employees who are in their living quarters while on-call are considered "at, or within the confines of his station," only when their living quarters are "designated by the agency as his duty station and when his whereabouts is narrowly limited and his activities are substantially restricted." § 143(b)(3). Accord Huskey, 302 F.3d at 1312. Employees are not "narrowly limited" or their activities "substantially restricted" where they "may leave his quarters provided he arrange[s] for someone else to respond to calls or leave[s] a telephone number by which he can be reached should his services be required." § 143(b)(3). Accord, e.g., Sheets v. United States, 2 Cl. Ct. 101, 103-04 (1983). The fact that employees are required to return to their duty stations within thirty minutes does not, by itself, support an award of standby pay. See, e.g., Huskey, 302 F.3d at 1312-13.
The Arbitrator found, and it is undisputed, that the Agency has not officially designated the grievants' living quarters as their duty stations. The Arbitrator also found, and it is undisputed, that the grievants are permitted to leave their living quarters if they arrange for someone else to respond to calls or leave a phone number where they can be reached. Thus, the employees [ v58 p246 ] were not "at, or within the confines of," their duty stations within the meaning of § 141. Although the Arbitrator found that the employees are required to return to work within thirty minutes of being called, that does not support standby pay. See id.
The Arbitrator found that although standby pay is not authorized by § 141, it is authorized by the parties' agreement. However, there is no claim, or other basis on which to conclude, that parties are permitted to bargain for entitlements to standby pay that are inconsistent with § 141. Therefore, insofar as the parties' agreement provides standby pay to FLSA-exempt employees that exceeds that provided in § 141, the agreement, as construed by the Arbitrator, is unenforceable. [n3]
For the foregoing reasons, we conclude that the award of standby pay is inconsistent with § 141, and we set it aside. [n4]
The award is set aside.
Footnote # 1 for 58 FLRA No. 59 - Authority's Decision
(c) An employee will be considered on duty and time spent on standby duty will be considered hours of work . . ., if:
1. The employee is restricted to an agency's premises, or so close to it that the employee cannot use the time effectively for his or her own purposes; or
2. the employee, although not restricted to the agency's premises:
(a) Is restricted to his or her living quarters or designated post of duty;
(b) Has his or her activities substantially limited; and
(c) Is required to remain in a state of readiness to perform work.
(d) An employee will be considered off duty and time spent in an on-call status will not be considered hours of work . . . if:
1. The employee is allowed to have a phone number . . . for the purposes of being contacted, even though the employee is required to remain within a reasonable call-back radius; or
2. The employee is allowed to make arrangements such that any work . . . during the on-call period will be performed by another person.
Award at 3.
Footnote # 2 for 58 FLRA No. 59 - Authority's Decision
In pertinent part, § 141 authorizes payment "to an employee in a position requiring him or her regularly to remain at, or within the confines of, his or her duty station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work." Section 143(b)(3) provides, in pertinent part, that an employee is "at, or within the confines, of his station" when the employee is at his:
living quarters, when designated by the agency as his duty station and when his whereabouts is narrowly limited and his activities are substantially restricted. . . . This limitation on an employee's whereabouts and activities is distinguished from the limitation placed on an employee who is subject to call . . . but may leave his quarters provided he arranges for someone else to respond to calls or leaves a telephone number by which he can be reached . . . .
Footnote # 3 for 58 FLRA No. 59 - Authority's Decision
Footnote # 4 for 58 FLRA No. 59 - Authority's Decision