United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF DEFENSE HEADQUARTERS, U.S. MARINE CORPS WASHINGTON, D.C.
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 93 FSIP 72

DECISION AND ORDER

    The American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Defense, Headquarters, U.S. Marine Corps, Washington, D.C. (Employer).

    After investigation of the request for assistance, the Panel determined that the impasse concerning electronic paging devices (commonly known as "beepers") should be resolved on the basis of written submissions, with the Panel to take whatever action it deemed appropriate to resolve the impasse. Written submissions were made pursuant to this procedure. The Panel then requested that the parties provide additional information concerning the prevailing practices involving such devices in the public and private sectors. The Panel has now considered the entire record, including the supplementary information submitted by the parties.

BACKGROUND

    The Employer develops and maintains a ready military force for amphibious operations. The Union represents 9,000 bargaining-unit employees in 2 consolidated units, 1 professional and 1 non-professional, who are stationed at some 19 bases nationwide. They work in positions such as plumber, electrician, carpenter, and inspector. The parties' master collective bargaining agreement (MCBA) became effective on November 8, 1990.

    The dispute arose during negotiations for the 1990 MCBA. The Employer declared the Union's proposal nonnegotiable.⁽¹⁾ The Federal Labor Relations Authority (FLRA), however, as affirmed by the U.S. Court of Appeals for the District of Columbia Circuit, found the proposal negotiable.⁽²⁾ Under the current MCBA, the Employer may require employees to carry a beeper to facilitate communications with them during duty and non-duty hours.⁽³⁾ During emergencies caused by severe weather or other circumstances that occur after regular hours, employees might be recalled to perform emergency electrical and plumbing repairs and to assess and abate hazardous working conditions. It is undisputed that when employees respond to actual calls, they are in a duty status and are compensated for a minimum of 2 hours for any recall, generally at overtime rates.

ISSUE AT IMPASSE

    The dispute concerns whether employees should be placed in a pay status whenever they are required to carry beepers.

POSITIONS OF THE PARTIES

1. The Employer's Position

    Basically, the Employer proposes that the status quo be maintained. When it lacks sufficient volunteers, it would rotate beeper assignments to employees who would be in a call-back, non-pay status. In addition, Article 15, section 6, of the current MCBA would be modified by: (1) eliminating a reference to length of assignment periods⁽⁴⁾ and (2) granting supervisors the discretion to excuse an employee from coming back, if, in their opinion, circumstances made the return "impracticable." Its proposal is consistent with Federal regulations which require compensation at overtime rates only when employees are actually called back to perform work. The beeper call-back system circumvents previous communications problems associated with telephone use and helps to ensure that overtime work assignments, when there are insufficient volunteers, are evenly distributed. In addition, employees appear to be satisfied to earn overtime once they are called back; none have filed grievances or made complaints about beepers. If it were forced to adopt the Union's proposal to provide compensation, and decided to continue to require employees to use beepers, they would likely be placed in a standby status. As a result, they would be required to remain at the worksite for long hours, a circumstance that would be disliked and severely intrusive on family life. Its proposal, on the other hand, closely parallels the resolution adopted by the Panel in a previous case,⁽⁵⁾ and, contrary to the Union's position, the level of intrusion on personal activities does not warrant placing employees in a pay status. Furthermore, as in Groton, supervisors may excuse employees from call-back assignments when their return to the workplace would be impracticable. Finally, if the Union's proposal were adopted, beeper use would likely be discontinued since all of the existing mechanisms for placing employees in a pay status, such as standby, compensatory time, and annualized premium pay,⁽⁶⁾ would result in unwarranted cost increases.

2. The Union's Position

    The Union proposes that "employees will not be required to carry or respond to 'beepers' unless they are in a duty and pay status." Employees should be compensated when they are assigned to carry beepers because their odd-hour availability is advantageous to the Employer, yet their freedom to engage in a variety of family-oriented and personal activities during non-duty hours is significantly impaired. They also are constrained by the need to refrain from drinking alcoholic beverages and to avoid strenuous activity so that, should they actually be called back, they will be fit for duty and avoid disciplinary consequences. Other employees who are paid at the same rates have no similar, work-related constraints during their "non-duty" hours. Significantly, at least 31 public and private sector organizations have negotiated contractual provisions that provide compensation to employees for carrying beepers after their normal hours of work. Such agreements generally grant employees amounts equal to 1 to 2 hours' pay for each day included in the weekly call-back period. Furthermore, the proposal is fully negotiable and does not impinge on the Employer's right to require employees to carry beepers. Finally, it is the Employer who is attempting to change the status quo, since beepers mainly came into use under the 1990 MCBA, after it asserted that the Union's related proposal was nonnegotiable.

CONCLUSIONS

    Having considered the evidence and arguments presented by the parties, we conclude, on balance, that the Union's proposal provides the more reasonable resolution to the dispute. In reaching this decision, we are aware that there is no evidence in the record that other Federal employers provide compensation to employees who are required to carry beepers when in a call-back status. Furthermore, some employees in a call-back status may actually prefer such devices to relying on telephones. Nevertheless, the comparability data submitted by the parties at the Panel's behest demonstrate that there is a common practice among private and public sector employers of providing some form of extra compensation in such circumstances. In our view, employees receive such consideration primarily because employers acknowledge that the use of beepers is an added infringement on employees' personal time. In recognition of this practice, we are persuaded that some form of compensation also is warranted for these employees.

    Having reached this conclusion, we also note that private and public sector employers requiring the use of beepers appear to have greater flexibility in setting an appropriate level of compensation than do their Federal sector counterparts, who are bound by regulations ill-suited to this purpose. In this regard, adoption of the Union's proposal may leave the Employer with a Hobson's choice where it might discontinue its previous requirement concerning the use of beepers, rather than incur the unacceptably high costs of the available alternatives. Despite this dilemma, however, we find that the equities in this case tilt toward those employees involuntarily required to bear additional work-related burdens during what would otherwise be personal time. Accordingly, we are constrained to order the adoption of the Union's proposal. Should the Employer determine, however, that the cost of implementing our order makes requiring the use of beepers impractical, there is nothing to preclude it from making them available for those employees who prefer to use them.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to 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 Union's proposal.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

August 19, 1993

Washington, D.C.

 

1.The parties agreed to sever this one item, the sole issue in the instant dispute, and to implement all other sections of the MCBA.

2.American Federation of Government Employees, Council of Marine Corps Locals (C-240) and U.S. Department of the Navy, United States Marine Corps, Washington, D.C., 39 FLRA 773 (1991); aff'd sub nom. Department of the Navy, U.S. Marine Corps v. Federal Labor Relations Authority, 962 F. 2d 1066 (1992).

3.Under Government-wide regulations, an employer has the discretion to place employees on compensated standby duty when their movements are substantially limited, and they maintain a certain level of readiness to perform work; on the other hand, it may place employees in an uncompensated call back status (not considered hours of work), when "[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." 5 C.F.R. § 551.431 (1992). Regulations also specify that an employee in call-back status may make arrangements for a substitute. 5 C.F.R. § 551.431(b)(2).

4.The current MCBA section specifies that the rotation period would be 1 week.

5.In Department of the Navy, Naval Submarine Base New London, Groton, Connecticut and Local R1-100, National Association of Government Employees (Groton), Case No. 90 FSIP 153 (1990), Panel Release No. 303, the Panel adopted the employer's proposal to assign paging devices to public works employees who are on call but away from the work site. The union's proposal would have required the employer to contact employees by telephone rather than by beeper and designate employees' homes as posts of duty so that they could be compensated at premium pay rates. The Panel based its decision, in part, on the difficulty the employer encountered when it tried to reach employees by telephone. It noted that employees could "be excused from returning to the installation if in management's opinion, circumstances make his or her return impracticable." (p.4).

6.Regulations do not permit annualized premium pay for prevailing rate employees; they are the segment of the bargaining unit most likely to be assigned beeper duties. Regulations at 5 U.S.C. § 5545(c)(1), which establish such pay impose the following conditions: 

An employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour. Premium pay under this paragraph is determined as an appropriate percentage, not in excess of 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-10.