**57 FLRA No. 63**

U.S. DEPARTMENT OF VETERANS AFFAIRS\
MEDICAL CENTER, ST. LOUIS, MISSOURI\
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT\
EMPLOYEES, LOCAL 96\
(Union)

0-AR-3377

[\_\_\_\_\_]{.underline}

DECISION

June 26, 2001

[\_\_\_\_\_]{.underline}

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and
Carol Waller Pope,
Members. [**\[n1\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21305) 

# I.     Statement of the Case 

      This matter is before the Authority on an exception to an award of
Arbitrator Michael D. Gordon 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 exception.

      For the following reasons, we find that the Agency has failed to
establish that the award is deficient under § 7122(a) of the Statute.
Accordingly, we deny the exception.

# II.     Background and Arbitrator\'s Award 

      The grievant was required to wear a pager in order to respond to
after-hours emergencies. After he performed this duty for several years,
the Agency began to pay him on-call pay, but later removed him from the
call list. Award at 6.

      The Union filed a grievance seeking pay under Article 20, § 5(E)
of the parties\' agreement (hereinafter, § 5(E)) for the years when the
grievant was on
call. [**\[n2\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21314) 
*T*he grievance was unresolved and proceeded to arbitration where the
Arbitrator considered the following **\[ v57 p297 \]** issues: Is \[the
g\]rievant entitled to on-call pay; and, if so, what is the appropriate
remedy . . . ? *Id*. at 2.

      The Arbitrator concluded that the grievant was entitled to pay
under § 5(E) of the parties\' agreement because § 5(E) unequivocally
says that employees may not be required to wear and respond to pagers
unless they are in pay status. *Id*. at 10. The Arbitrator found that
§ 5(E) influences the circumstances involved in employee assignments so
\[employees\] will meet conditions for entitlement to compensation and
that the parties\' reference to pay status in § 5(E) was synonymous with
the regulatory definition of standby status in 5 C.F.R.
§ 551.431. [**\[n3\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21318) 
*Id.* at 10-11. The Arbitrator agreed with the Agency that the grievant
would not be entitled to pay solely under § 551.431, but found that the
parties\' collective bargaining contract entitl\[ed\] him to pay.
*Id*. at 9.

      The Arbitrator found that § 5(E) was enforceable consistent with
the Authority\'s decision in *AFGE, Council of Marine Corps Locals
(C-240)*, 39 FLRA 773 (1991), *aff\'d sub nom.* *United States Dep\'t of
the Navy v. FLRA*, 962 F.2d 1066 (D.C. Cir. 1992) (*AFGE*), and by
requiring the grievant to wear a pager without compensating him, the
Agency had violated this provision. Finding that the violation was an
unwarranted and unjustified personnel action under the Back Pay Act, the
Arbitrator awarded the grievant backpay with interest.

# III.     Positions of the Parties 

## 1.     Agency\'s Exception 

      The Agency asserts that the award is contrary to law. In
particular, the Agency claims that the grievant cannot be entitled to
pay under § 5(E) of the parties\' agreement because the Arbitrator found
that the grievant did not meet the regulatory criteria for pay under
5 C.F.R. § 551.431(b)(1). The Agency also disputes the Arbitrator\'s
reliance on *AFGE*, and claims that under *AFGE,* the grievant may not
be
paid. [**\[n4\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21326) 

## 2.     Union\'s Opposition 

      The Union claims that the award is not deficient. According to the
Union, the Agency entered into a contract and they must abide by the
contract. Opposition at 2.

# IV.     Analysis and Conclusions 

      When an exception involves the award\'s consistency with law, the
Authority reviews any question of law raised by the exception and the
award de novo. *See NTEU, Chapter 24*, 50 FLRA 330, 332 (1995) (citing
*United States Customs Service v. FLRA*, 43 F.3d 682, 686-87 (D.C. Cir.
1994)). In applying *de novo* review, the Authority assesses whether an
arbitrator\'s legal conclusions are consistent with the applicable
standard of law. *See United States DOD, Dep\'ts of the Army* *and the
Air Force, Ala. Nat\'l Guard, Northport, Ala.*, 55 FLRA 37, 40 (1998).
In making that assessment, the Authority defers to the arbitrator\'s
underlying factual findings. *See id.*

      In concluding that the Agency\'s failure to pay the grievant
violated § 5(E), the Arbitrator relied on *AFGE.* In that case, the
Authority found negotiable a proposal that required an agency to place
employees in a pay status whenever they were required to carry or
respond to beepers. As relevant here, the Authority, concluding that the
proposal was not inconsistent with § 551.431, explained that standby
status is based on the extent to which an employee\'s freedom of
movement and activity are restricted and not on whether the employee is
required to carry a beeper. *AFGE*, 39 FLRA at 778. The Authority
concluded that the proposal left intact the agency\'s discretion to
restrict employees\' movement and activity in order to qualify them for
standby pay, and as such, did not require the agency to pay employees
merely for carrying and responding to beepers. *Id.* at 779.

      Citing and relying on *AFGE*, the Arbitrator stated that § 5(E)
influences the circumstances involved in employee assignments so they
will meet conditions for entitlement to compensation. Award at 11. That
is, the Arbitrator found that, by agreeing to § 5(E), the Agency agreed
to exercise its discretion to place on the grievant whatever
restrictions were necessary to entitle him to pay, whenever he was
required to carry and respond to a pager.

      Consistent with the foregoing, the Agency\'s reliance on the
requirements for pay under § 551.431 is misplaced. Indeed, since § 5(E)
required the Agency to take actions necessary to permit the grievant to
be paid, the Agency\'s insistence that the grievant did not meet the
regulatory criteria for pay confirms \-- not excuses \-- **\[ v57 p298
\]** its violation of § 5(E). As the Arbitrator found that the grievant
would have been paid had the Agency not violated § 5(E), the award of
standby pay is not deficient. *See*, *e.g., United States Dep\'t of
Veterans Affairs Med. Ctr., Coatesville, Penn.*, 56 FLRA 829, 834 (2000)
(award of overtime compensation not deficient where employees did not
perform overtime work but would have worked overtime had agency not
violated agreement)
(*VAMC*). [**\[n5\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21336) 

# V.     Decision 

      Based on the foregoing, we conclude that the Agency has failed to
demonstrate that the award is deficient under § 7122(a) of the Statute.
Accordingly, we deny the Agency\'s exception.

# Dissenting Opinion of Chairman Cabaniss: 

      I respectfully dissent from my colleagues as to whether this award
impermissibly conflicts with 5 C.F.R. § 551.431. For the reasons that
follow, I would set aside the award based upon the parties\' failure to
comply with that regulation\'s requirements.

      There is no doubt that parties have the ability to negotiate the
provision in question, as the *United States Dep\'t of the Navy v. FLRA*
case cited in the majority opinion points out. That opinion, however,
does not provide that an agency can legally make payment to an employee
whose actions do not fulfill the requirements of the regulation. To the
contrary, the court expressly acknowledged that an agency\'s options
with such provisions are to either levy sufficient restrictions on an
employee to qualify him or her for payment under the C.F.R. provisions,
or not have the employee stay at home or wear the beeper. *Dep\'t of the
Navy v. FLRA*, 962 F.2d 1066, 1068-69 (D.C. Cir. 1992). There is nothing
in that decision that justifies or permits paying an employee in
violation of 5 C.F.R. § 551.431, and I am aware of no way that either
the parties or the Arbitrator can waive the regulatory prerequisites to
be considered in a duty status.

      Here the Arbitrator acknowledged that the proposed payment to the
grievant did not comply with the requirements of the regulation (Award
at 9), but found a contractual duty to pay, even though the requirements
of the statute (and implementing regulation) were not met. With this
conclusion I disagree. While there is nothing in the provision itself
that conflicts with 5 C.F.R. § 551.431, neither the parties nor the
Arbitrator have the ability to enforce the provision in such a manner
that the application of the provision violates these C.F.R. regulations.
I see no way that a violation of the provision here can justify
requiring a payment that federal regulation clearly prohibits.

      Given the regulatory requirements, a cease and desist order by the
Arbitrator to the Agency would be appropriate, to require the Agency to
either place sufficient restrictions on employees to warrant them
receiving pay under the regulations to not require them to stay at home
or wear beepers, but none of that would result in payment. Again, and as
noted by the court, the requirement of such a provision is either to
compel the Agency to do enough to qualify the employees for payment, or
not have the employees stay home or wear pagers. A remedy for violating
the provision would be to do just that, rather than violate mandatory
regulations defining when an employee is or is not in a duty status.

      For those reasons, therefore, I would set aside the award as being
contrary to 5 C.F.R. § 551.431 because these employees have not
fulfilled the regulatory requirements for being in a duty status.

**Footnote \# 1** for 57 FLRA No. 63

   Chairman Cabaniss\' dissenting opinion is set forth at the end of
this decision.

**Footnote \# 2** for 57 FLRA No. 63

   Article 20, § 5(E) provides: Employees will not be required to stay
at home or wear and respond to beepers/pagers unless they are in a pay
status. Award at 2.

**Footnote \# 3** for 57 FLRA No. 63

   Under 5 C.F.R. § 551.431(a)(1) (2000), an employee is in paid standby
status when, as pertinent here:

> \[F\]or work-related reasons, the employee is restricted . . . to a
> designated post of duty and is assigned to be in a state of readiness
> to perform work with limitations on the employee\'s activities so
> substantial that the employee cannot use the time effectively for his
> or her own purposes.

**Footnote \# 4** for 57 FLRA No. 63

   We note the Agency\'s claim that, in interpreting § 5(E), the
Arbitrator ignor\[ed\] § 5(F) of the parties\' agreement, which states
that participation in nonpaid, on-call status shall be voluntary.
Exception at 4. As we do not construe this statement as raising a
separate, essence claim, we will not address the assertion further.

**Footnote \# 5** for 57 FLRA No. 63

   We agree with our dissenting colleague that the court in *Dep\'t of
the Navy v. FLRA* gave two options by which an agency may comply with a
provision like the one here. In particular, an agency may either: (1)
place necessary restrictions on employees to qualify them for pay, or
(2) drop the beeper plan altogether. *Dep\'t of the Navy v. FLRA*, 962
F.2d at 1069. We also agree that the Agency in this case did not
exercise either of those options and, instead, required the grievant to
carry a pager without restricting him according to the regulations.
However, in concluding that the award in this case is deficient, the
dissent has missed the point of *Dep\'t of the Navy*. In this regard,
*Dep\'t of the Navy* unquestionably stands for the proposition that
provisions such as § 5(E) \-- which require payment for carrying pagers
but permit an agency to impose on employees whatever restrictions are
necessary to make such payment permissible under applicable regulations
\--are enforceable in arbitration. The Agency in this case violated
§ 5(E). As with the failure to pay overtime in *VAMC*, the fact that the
grievant did not carry a pager under conditions satisfying the
regulatory requirements \-- a situation attributable entirely to the
Agency\'s failure to comply with § 5(E) \-- does not affect his right to
compensation for being wrongly denied the opportunity to do so. The
dissent\'s conclusion to the contrary simply rewards the Agency for its
violation of the parties\' agreement. Nothing in law or common sense
dictates this result.