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60 FLRA No. 3
FEDERAL EMPLOYEES METAL
DEPARTMENT OF THE NAVY
NAVY PUBLIC WORKS CENTER
June 14, 2004
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 Bernard T. Holmes filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied the grievance, which alleged that the grievant was entitled to compensation for the time he spent in on-call duty status. For the reasons set forth below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
Under the procedures established by a Memorandum of Agreement (MOA), the Agency assigned the grievant to an on-call duty assignment. [n1] The grievant filed a grievance asserting that it was unlawful for the Agency not to compensate him for the time he spent on-call. The grievance was unresolved and was submitted to arbitration, where the Arbitrator framed the issue to be: "Whether the grievant is entitled to compensation for time spent in an on-call status, and if so, what is the remedy?" Award at 2.
The Arbitrator found that the grievant was one of twenty-three people assigned, on a rotational basis, to a Wednesday-to-Wednesday, on-call schedule. He also found that, while on-call, the grievant was provided with a pager and a mobile telephone to respond to after-hours emergencies. The Arbitrator further found that if a scheduling conflict occurred, then the grievant was permitted to have another employee cover the grievant's on-call duty assignment.
The Arbitrator determined that the on-call provisions of the MOA were consistent with the standards set forth in 5 C.F.R. § 551.431(b) (§ 551.431(b)) [n2] , and that the Union had failed to establish "virtually any" of the private sector criteria outlined in Skidmore v. Swift & Co., 323 U.S. 134 (1944) (Swift), relating to work time. [n3] See Award at 5, 7. The Arbitrator further determined that the MOA is not ambiguous, and that, "while on-call, employees are in a non-pay status." Id. at 7. Accordingly, the Arbitrator concluded that the grievant was "not entitled to compensation solely for being in an on-call status[,]" and he denied the grievance. Id. at 8, 9.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the award fails to draw its essence from the parties' agreement. Specifically, the Union contends that the Arbitrator erred in finding that on-call employees are in a non-pay status because the parties' MOA does not address pay for on-call employees. The Union also contends that the Arbitrator's interpretation of the MOA prevents the Union from exercising its right to grieve the issue of pay for employees in on-call work status. [ v60 p11 ]
In addition, the Union argues that the award and the MOA are contrary to 29 C.F.R. § 785.16 (§ 785.16). [n4] In this regard, the Union asserts that, while on-call, the grievant was not "definitely told in advance that he may leave the job and that he [would] not have to commence work until a definitely specified hour ha[d] arrived." Exceptions at 2 (citing § 785.16). Accordingly, the Union contends that the grievant was not "off duty" within the meaning of § 785.16 and is entitled to compensation for the time he spent on-call.
B. Agency's Opposition
The Agency disputes that the award fails to draw its essence from the MOA. In this regard, the Agency asserts that the MOA is unambiguous regarding the non-pay status of on-call employees, and that the MOA procedures are proper under § 551.431(b). In addition, the Agency contends that the MOA and the award are not contrary to § 785.16. The Agency maintains that, during the MOA negotiations, the parties made efforts to specify a definite time when on-call employees would be required to commence work, and that the efforts resulted in an agreement providing on-call employees with two hours to respond to an emergency. The Agency further maintains that, under 29 C.F.R. § 785.17 (§ 785.17), the grievant is not entitled to compensation, because he was not required to remain on the Agency's "premises or so close thereto that he [could] not use the time effectively for his own purposes[.]" Opposition at 3.
A. The award draws its essence from the parties' agreement.
In order for an award to be found deficient because it does not draw its essence from the collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to the arbitrator in this context because it is the arbitrator's construction of the agreement for which the parties have bargained. Id. at 576.
Here, the Arbitrator found that, while on-call, the Agency provided the grievant with a pager and a mobile telephone to respond to emergencies and permitted the grievant to have another employee perform his on-call assignments in case of a scheduling conflict. The MOA specifically provides that, under these circumstances, the grievant's on-call hours shall not be considered "hours of work[,]" a statutory term used to describe time creditable for determining overtime pay. See 5 U.S.C. § 5542; 5 C.F.R. § 551.104. The Arbitrator determined that the language of the MOA is not ambiguous regarding on-call pay, and that "while on-call, employees are in a non-pay status." Award at 7. As the Union has not demonstrated that the Arbitrator's interpretation of the MOA, as not entitling the grievant to pay for time spent on-call, is implausible, irrational, unfounded in fact, or unconnected to the language of the MOA, we deny the exception.
B. The award is not contrary to 29 C.F.R. § 785.16.
When a party's exception involves an award's consistency with a Government-wide regulation, the Authority reviews any question of law raised by the award and the exception de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). Under the de novo standard, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Union claims that the award and the MOA are contrary to law because, while on-call, the grievant was not "off-duty" within the meaning of § 785.16, and, thus, is entitled to compensation for time spent on-call. However, nothing in § 785.16 provides for payment to employees who are on-call. Further, the Union ignores the next section of the regulations, entitled "On-call time[,]" which specifically provides that, "[a]n employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call." 29 C.F.R. § 785.17. Accordingly, § 785.17, not [ v60 p12 ] § 785.16, is the applicable Department of Labor regulation regarding on-call duty assignments, and the Union's argument based on § 785.16 is misplaced.
Moreover, as stated in § 551.431(b) and the parties' MOA, an employee is considered "off duty" and time spent in an on-call status shall not be considered "hours of work" for the purpose of determining overtime compensation if: (1) the employee is allowed to carry an electronic device for the purpose of being contacted; or (2) the employee is permitted to have another employee perform any work which may arise during the on-call period. The Arbitrator found that the Agency's on-call provisions met both of these conditions. As § 551.431(b) specifically provides that, in the circumstances found by the Arbitrator, the grievant is not entitled to on-call pay, the Union has failed to establish that the award and the MOA are contrary to law. Accordingly, we deny the exceptions.
We deny the Union's exceptions.
The parties' Memorandum of Agreement regarding on-call duty assignments provides, in pertinent part, as follows:
1. The purpose of this Memorandum of Agreement is to establish procedures that will be implemented to meet the requirements of on-call duty assignments throughout the Navy Public Works Center, Norfolk.
. . . .
. . . .
The Code of Federal Regulations, Title 5, Chapter I, Part 551 addresses duty and pay status for employees required to be on-call. Specifically, Section 551.431(b) states:
An employee will be considered off duty and time spent in an on-call status shall not be considered hours of work if:
(1) The employee is allowed to leave a telephone number or to carry an electronic device for the purpose 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 which may arise during the on-call period will be performed by another person.
. . . .
Persons assigned to on-call status:
- Are required to respond to a page and report to the job site within two hours from the time they are paged.
. . . .
- Are allowed to make arrangements such that another qualified person will respond in place of the person assigned.
Having bargained the impact and implementation of the On-Call Procedures on 30 May 2001, the parties agree to the following terms and conditions:
- Assignment to on-call status will be from Wednesday to Wednesday.
- Persons assigned to on-call status will be provided a duty pager and duty cellular telephone.
. . . .
- Persons assigned to on-call may be relieved of the assignment in the event of an emergency.
. . . .
Any issues arising, that are not covered in this memorandum, will be settled by way of the grievance process or further negotiations, whichever is appropriate.
Footnote # 1 for 60 FLRA No. 3 - Authority's Decision
Footnote # 2 for 60 FLRA No. 3 - Authority's Decision
5 C.F.R. § 551.431(b) states that, "[a]n employee will be considered off duty and time spent in an on-call status shall not be considered hours of work if: (1) [t]he employee is allowed to leave a telephone number or to carry an electronic device for the purpose of being contacted, even though the employee is required to remain within a reasonable call-back radius; or (2) [t]he employee is allowed to make arrangements such that any work which may arise during the on-call period will be performed by another person." 5 C.F.R. § 551.431(b).
Footnote # 3 for 60 FLRA No. 3 - Authority's Decision
In Swift, the Supreme Court found that the determination of whether an employee is engaged in work time is "a question of fact to be resolved by appropriate findings of the trial court." Swift, 323 U.S. at 136-37. The Court stated that the appropriate findings would result from "scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances." Id. at 137.
Footnote # 4 for 60 FLRA No. 3 - Authority's Decision
29 C.F.R. § 785.16(a) states that, "[p]eriods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case." 29 C.F.R. § 785.16.