United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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In the Matter of DEPARTMENT OF THE ARMY |
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and LOCAL 1345, AMERICAN FEDERATION OF
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Case No. 02 FSIP 201 |
DECISION AND ORDER
The Department of the Army, Evans Army Community Hospital, Fort Carson, Colorado (Employer) and Local 1345, American Federation of Government Employees, AFL-CIO (Union) filed a joint request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119.
Following an investigation of the request for assistance, which concerns the return to work policy for certain nurses, the Panel determined that the dispute should be resolved through an informal conference by telephone with a Panel representative. The parties were advised that if no settlement was reached, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.
Pursuant to this procedural determination, Panel Representative (Staff Attorney) Kenneth E. Moffett, Jr. conducted an informal conference with the parties on December 17, 2002. Although settlement options were explored during the course of the proceeding, the parties were unable to resolve the dispute. The parties subsequently were permitted to submit statements in support of their final offers. The Panel has now considered the entire record.
BACKGROUND
The Employer’s mission is to support approximately 15,000 Army soldiers in heavy infantry and armor units. The hospital provides in-patient and out-patient care for military members, retirees, and dependents. The Union represents about 1,100 bargaining-unit employees. The outcome of the dispute will affect approximately 50 professional nurses (licensed practical nurses, GS-6; and registered nurses, GS-10), who work at the hospital. The nurses are exempt from the provisions of the Fair Labor Standards Act (FLSA). The collective bargaining agreement (CBA) was effective from December 1994 through December 1997. It was renewed in 2000 and expires in December 2003.
ISSUE AT IMPASSE
The dispute concerns whether employees should be placed in a duty and pay status if they are required to wear beepers.(1)
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer proposes the following wording:
Employees who are covered by this [Memorandum of Agreement] will not be required to use beepers. Employees who are on call may request the use of an available beeper. The Employer will ensure that there are an adequate number of beepers for use when employees are on call. This provision controls over language contained in Article 8, Section 8(b) of the parties’ CBA.
The proposal modifies the CBA by rescinding the requirement that nurses use beepers.(2) The unequivocal wording of the proposal should alleviate the Union’s concerns by clarifying that the Employer will not (1) require nurses to use beepers when on call, or (2) restrict their freedom to spend non-work time as they see fit. Instead, affected nurses should be assured that they may "leave their homes, provided they arrange for someone else to respond to calls or leave a phone number by which they can be reached should their services be required." There is no intention to impose upon nurses any of the limitations that would entitle them to standby pay as governed by 5 C.F.R. § 550.141.(3) At the hospital, nurses are permitted to "self-schedule" in advance the times they will be on-call, and may trade with co-workers if a personal commitment arises. In contrast, the Union’s proposal fails to acknowledge that in order to be in a "duty and pay status" while on-call after duty hours, employees would be required to meet the conditions of "standby": They would have to be directed to remain at their duty station or at their home in a state of readiness. The Union’s proposed wording also creates the false impression that employees would receive standby pay simply for carrying a beeper: that is inconsistent with Federal regulations. Finally, Federal regulations simply do not authorize pay for employees who "respond" to a beeper; employees are only paid when they perform work.
2. The Union’s Position
The Union proposes that "employees [] not be required to carry or respond to ‘beepers’ unless they are in a duty and pay status." Contrary to the Employer’s position, the issue has never been limited to nurses.(4) The Union does not dispute that the agency has a right to place an employee on call, and it does not seek to change the CBA provisions that address standby and on-call circumstances. Rather, because employees who are on call are required to remain within a reasonable call-back radius, the proposal is intended to protect all hospital employees, not just nurses, "from performing the agency’s work without compensation while in an off-duty status." Although the Employer proposes not to require nurses to carry or respond to beepers, the established practice is that employees are required to wear and respond to beepers "on or off duty." Adoption of the Union’s proposal would bring about "a consistent beeper policy throughout the hospital," and protect employees if supervisors continue to require beepers to be carried despite the Employer’s proposal in the case.
CONCLUSION
Having carefully reviewed the evidence and arguments presented in this case, the Panel concludes that the Employer’s proposal should be adopted to resolve the dispute. The Union’s contention that the decision should apply to all hospital employees must be rejected since the ULP charge which provides the foundation for the instant impasse refers only to nurses. It is also clear that the Panel’s decision will be incorporated into a Memorandum of Agreement (MOA) "relative to on-call for nurses.(5)" While the Union suggests that its proposal would "protect" employees from restrictions attendant to on-call duty, such restrictions are attributable to an employee’s on-call status, and are distinct from the issue of whether employees are required to carry a beeper. The "limitations" and non-pay status of employees who are on call are expressly authorized by Government-wide regulations,(6) and it is not within the Panel’s purview to modify or amend Federal regulations.
ORDER
Pursuant to the authority vested in it by the Federal Service Labor-Management Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under § 2471.11(a) of its regulations, hereby orders the following:
The parties shall adopt the following language:
Employees who are covered by this Memorandum of Agreement will not be required to use beepers. Employees who are on call may request the use of an available beeper. The Employer will ensure that there are an adequate number of beepers for use when employees are on call. This provision controls over language contained in Article 8, Section 8(b) of the parties’ CBA.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
January 28, 2003
Washington, D.C.
1. The parties are bargaining over the
“return to work” policy for nurses in the following units: ICU [Intensive Care Unit],
PACU [Post-Anesthesia Care Unit], SDS [Same-Day Surgery], Pre-Admissions, MB/L&D
[Mother-Baby/Labor & Delivery], OR [Operating Room], ER [Emergency Room] and 4East.
In January 2001, the Employer began requiring nurses to be on call. OR nurses were
required to be available to return to work within 30 minutes; other nurses were
required to be available to return to work within 60 minutes. The Union filed an
unfair labor practice (ULP) charge, which was eventually settled when the parties
agreed to bargain over the policy change.
2. Article 8, Section 8, of the CBA
states, in relevant part:
Some employees may be required to carry a beeper. Other employees
may request the use of an available beeper. 3. Section 550.141, which governs
Fair Labor Standards Act (FLSA) exempt employees, states generally that an agency
may pay premium pay to an employee
in a position requiring him or her regularly to remain at, or within
the confines of, his or her station during longer than normal periods of duty, a
substantial part of which consists of remaining in a standby status rather than
performing work. Pursuant to 5 C.F.R. § 550.143, the phrase “at, or within the confines of, his or her
station” means: (1) at an employee’s regular duty station; (2) in quarters provided
by the agency “which are specifically provided for use of personnel required to stand
by in readiness to perform actual work when the need arises or when called”; or
(3) in the employee’s living quarters
when designated by the agency as his duty station and when his
whereabouts are 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 outside his
tour of duty 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 should
his services be required. 4. The Union asserts that the bargaining unit
contains FLSA exempt and non-exempt employees, and that the Employer has proposed to require
non-nurse employees, such as respiratory therapists, laboratory technicians and Wage Grade
employees in Logistics, to be on-call. For this reason, the Union contends that the policy
should be applied to all hospital bargaining-unit employees.
5. The proposed MOA was exchanged by the
parties on or about January 24, 2002.
6. See 5 C.F.R. § 550.143.