United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF THE ARMY U.S. ARMY ABERDEEN PROVING GROUND SUPPORT ACTIVITY ABERDEEN PROVING GROUND, MARYLAND
AND LOCAL 2424, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO	Case No. 95 FSIP 168

DECISION AND ORDER

    The Department of the Army, U.S. Army Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland (Employer) 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 Local 2424, International Association of Machinists and Aerospace Workers, AFL-CIO (Union).

    After investigation of the request for assistance concerning a dispute over the establishment of a mandatory overtime roster for emergency repairs, the Panel directed the parties to participate in an informal conference with Panel Representative (Staff Attorney) Ellen J. Kolansky for the purpose of resolving the outstanding issue. The parties were advised that if no settlement were reached, Mrs. Kolansky would report to the Panel on the status of the dispute, including the parties' final offers and her recommendations for resolving the matter. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Accordingly, Mrs. Kolansky met with the parties on December 21, 1995, at the Panel’s offices in Washington, D.C., but the disputed issue was not resolved. She has reported to the Panel on the issue based on the record developed by the parties. The Panel has now considered the entire record.

BACKGROUND

    The Employer operates the Aberdeen Area Maintenance Branch which provides approximately 30 tenant activities with utilities, logistical support, troop issue, overseas processing, and building and housing repair. There are 2,200 buildings, 1,277 housing units, and numerous bachelor officer quarters and barracks at the 119,000 acre facility. The Union represents a consolidated unit of 800 trades and crafts employees and nonprofessional health clinic workers. Approximately 34 employees in the Minor Repair Section of the Directorate of Public Works, who work as plumbers, pipefitters, maintenance mechanics, electricians, carpenters, and locksmiths, will be affected by the outcome of the dispute. The parties’ collective bargaining agreement was recently renegotiated; it is due to expire on November 16, 1997.

ISSUES AT IMPASSE

    The sole issue in dispute concerns whether employees on the proposed roster should be in a pay status during those "nonduty" periods when it is their turn to take emergency calls to return to the worksite.

POSITIONS OF THE PARTIES

1. The Employer's Position

    Under the Employer’s proposal, employees would select roster dates to take turns responding to calls for emergency repairs during nonduty hours;⁽¹⁾ ties for a particular day would be broken by seniority; and holiday roster slots would be filled by a lottery. Employees would be required to leave a telephone number and remain within a reasonable radius of the Aberdeen area so that the return trip could be made within 60 minutes, although brief extensions would be granted. In addition, employees would be permitted to find a substitute, and would be excused from such an assignment "for good reason acceptable to the Employer." Under section 7 of its proposal, if an employee should receive no calls during such a period, no compensation would be provided. When the time actually worked comes just before or just after a scheduled shift, the Employer would grant the employee up to 4 hours of administrative leave for rest. Lastly, for convenience, employees may choose to use "beepers"⁽²⁾ and cellular telephones, but their use would not be mandatory. In this regard, previous Panel decisions, which considered whether employees required to carry pagers should be in a pay status, are not applicable.

    Generally, each call necessitates that two men work for 4 hours making urgent plumbing repairs. Data from 1994, a year with severe weather conditions which increased the number of emergencies, show that employees were called back 94 times; a total of 757 emergency overtime hours were paid. The proposal is necessary because it currently takes up to 3 hours to find an employee willing to come back to the workplace when an emergency arises. Many employees either do not answer their telephones or are otherwise unavailable when called. Thus, for the 2-year period ending in the summer of 1995, such calls were limited to the five to seven employees who regularly agree to return to the workplace.⁽³⁾ Their complaints about feeling overworked prompted the development of the roster so that all 34 section employees would share in these assignments. This measure would reduce the burden on any given employee by spreading the obligations among the entire list; each employee would take slightly less than two turns per month and might actually be asked to handle only four emergency repairs per year.

    With respect to the Union’s proposal, there is no legal authority for compensating these employees because, under the governing regulations at 5 C.F.R. §551.431, they are in an "on-call status" and not on "standby duty," as the Union claims. Comptroller General decisions have found that "to qualify for overtime compensation . . . the claimant must establish that the on-call time at home constituted ‘hours of work’."⁽⁴⁾ Circumstances similar to those in the instant case, "[w]here an employee is allowed to stand by in his own home with no duties to perform for his employer except to be available to answer the telephone . . . do not amount to ‘hours of work’ . . . and are not compensable."⁽⁵⁾ Even if legal, the options for compensating employees that the Union suggests are too expensive and, therefore, would force adoption of cost containment measures such as contracting out. In this regard, the estimated costs of the Union’s options are: (1) $32,338 per year to provide 2 hours’ additional pay per turn regardless of whether employees receive a call; (2) $87,734 per year to compensate employees for a quarter of their waiting period; and (3) $175,548 per year for overtime for the entire period which could be justified only by increasing the restrictions on employees in accordance with "standby duty" regulations. Although a night shift covered emergency repair needs until about 10 years ago, that shift was discontinued because it was not cost effective to pay a year’s salary to cover some 94 incidents.

2. The Union's Position

    The Union proposes that bargaining-unit employees who are required to list themselves as available for dates on the mandatory emergency roster be in a pay status when they take their turns. In essence, these are "standby" assignments which restrict employees’ private activities to such an extent that additional compensation is justified. In this regard, such assignments interfere with family, recreational, and religious events; employees would have to refrain from drinking and strenuous exercise to remain ready to return to the workplace should a need arise. In addition, such extra burdens are particularly hard on employees, many of whom work as much as 56 hours a week when scheduled overtime is counted. Moreover, in the public sector, two local employers provide 2 hours of additional compensation per turn for similarly situated employees. Finally, until the early 1980s, a night shift covered these emergencies; the Employer eliminated the shifts, thereby creating the problem. It could consider options such as giving compensatory time off awards, reestablishing the night shift, or hiring additional employees to deal with emergencies.

CONCLUSIONS

    Having carefully considered the evidence and arguments presented by the parties, we conclude that the Employer’s proposal should be adopted to resolve the dispute. Initially, we note that the significant delays associated with finding an employee willing to respond to an emergency demonstrate a need for establishing the emergency call back roster. Regarding the issue of compensation, the record establishes that employees who are called back to work in these circumstances are paid in accordance with current regulatory requirements, i.e., at overtime rates for actual work performed, and for a minimum of 2 hours when the employee returns to the worksite even if no work is performed. While comparability data indicate that public sector employers offer some limited compensation for such duties, most of the options that the Union puts forward would require a change in Federal regulations. Finally, we believe that these "roster duty" assignments, which encompass only a commitment to respond to calls or find a substitute when emergency repairs must be undertaken, do not warrant additional compensation in these circumstances. In this regard, we are persuaded that their intrusiveness is minimized because employees are permitted to select their own on-call dates, may find substitutes, can ask for extra time before returning to the worksite, may be excused under reasonable circumstances, and can choose the convenience of using a long-range beeper and a cellular telephone.

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 Employer’s proposal.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

February 27, 1996

Washington, D.C.

 

1.Normally, employees work 40 hours per week plus up to 16 additional hours of scheduled, voluntary overtime.

2.The beepers to be offered receive signals in a geographical area that extends from Georgia to Maine.

3.Following comments by the Union during negotiations, the supervisor resumed calling the entire list of names sequentially.

4.In the Matter of Gary R. Clarke, et al., B217490, October 4, 1985.

5.Id., citing Rapp and Hawkins v. United States, 167 Ct. Cl. 852, 340 F.2d 635 (1964) and Moss v. United States, 173 Ct. Cl. 1169, 353 F.2d 746 (1965).