**57 FLRA No. 47**

NATIONAL ASSOCIATION OF GOVERNMENT\
EMPLOYEES, LOCAL R5-136\
(Union)

and

UNITED STATES DEPARTMENT OF\
VETERANS AFFAIRS\
RALPH H.JOHNSON MEDICAL CENTER\
CHARLESTON, SOUTH CAROLINA\
(Agency)

0-AR-3368

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

DECISION

May 31, 2001

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

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and
Carol Waller Pope, Members

Decision by Chairman Cabaniss for the Authority.

# I.     Statement of the Case 

      This matter is before the Authority on exceptions to an award of
Arbitrator Fred C. Benedetto 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 a grievance that alleged that the Agency
improperly failed to pay a group of employees a minimum of two hours of
overtime pay for work performed at their residences.

      For the reasons that follow, we deny the Union\'s exceptions.

# II.     Background and Arbitration Award 

## A.     Background 

      The Union filed the grievance on behalf of 15 employees in the
Information Technology Division (ITD) who maintain and repair the
computer equipment at the Medical Center.

      Beginning in the late 1980\'s, the ITD employees were subject to
being called back into work after their shifts ended to repair
equipment. When the Agency called the employees back to its premises,
the employees received a minimum of two hours of call-back pay, as
required by Article 14, Section 7 of the parties\' collective bargaining
agreement. [**\[n1\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21300) 

      In approximately 1994, the ITD employees suggested to the Agency
that the employees, with the new technologies then becoming available,
could perform most of the required repairs from their residences. Based
on that information, the Agency issued the ITD employees pagers and
computers for their residences. Instead of returning to the Medical
Center to make repairs to the Agency\'s equipment, employees began to
perform those tasks from their residences. The Agency compensated the
employees, in fifteen minute increments, for the time that they actually
spent working on the Agency\'s equipment from their
residences. [**\[n2\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21305) 
The Agency did not pay the employees the two-hour minimum contained in
Article 14, Section 7.

      In July 1998, after several years of this arrangement, the Union
filed a class action grievance over the Agency\'s failure to pay the
employees a minimum of two hours of overtime. When the grievance was not
resolved, the matter was submitted to arbitration.

## B.     Arbitration Award 

      The parties stipulated to the following issue:

> Did the Agency violate the Agreement or law, by not paying the
> employees of the ITD section, minimum of two hours of overtime pay for
> employees called to work at home. If so, what should the remedy be?

Award at 1-2.

      The Arbitrator first addressed the timeliness of the grievance.
The Agency argued that the Arbitrator should not consider the merits of
the grievance because the Union filed the grievance well outside the
time limits established in the agreement. The Arbitrator ruled that he
would consider the merits of the charge, given **\[ v57 p221 \]** both
parties\' failure to adhere to the grievance procedure in its
entirety. [**\[n3\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21314) 

      The Arbitrator then ruled that the Agency had not violated the
terms of the agreement by failing to compensate the ITD employees with a
minimum of two hours of compensation for work performed at their
residences. In so ruling, he determined that the provisions of the
agreement governing call-back pay required the payment of a minimum of
two hours of overtime to employees only if they physically returned to
the Agency\'s premises to perform their work. In making this
determination, the Arbitrator also considered the past practice that
undisputedly had developed of not paying the ITD employees a minimum of
two hours of overtime for performing work at their residences. The
Arbitrator did not rule on whether Federal statutes and regulations
required the payment of two hours of overtime for less than two hours of
work performed at an employee\'s residence.

# III.     Positions of the Parties 

## A.     Union\'s Exceptions 

      The Union first argues that the award fails to draw its essence
from the agreement. In this regard, the Union maintains that an
interpretation of the Agreement that would require employees to be
actually recalled into the Agency\'s premises before becoming eligible
for a minimum of two hours of overtime creates an additional limitation
on the two-hour entitlement not contained in the contract. In addition,
the Union argues that the imposition of such a requirement would lead to
absurd results as employees who perform work outside of their residence,
but not at the Medical Center, would not be eligible for the two hour
minimum compensation.

      The Union\'s second exception is that the award is contrary to
law, specifically 5 U.S.C. §
5542(b)(1). [**\[n4\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21322) 
The Union argues that that provision requires the payment of a minimum
of two hours of overtime in two circumstances. The first situation
occurs when an employee is called back into his or her place of
employment to perform work. The second situation occurs when an employee
works unscheduled overtime outside of his regular workday, regardless of
where that work is performed. Consequently, the Union claims that the
award is contrary to 5 U.S.C. § 5542(b)(1) because it imposes an
additional requirement on the two hour overtime minimum payment, a
return to the workplace, not found in the Statute.

## B.     Agency\'s Opposition 

      In response to the Union\'s first exception, the Agency argues
that the award is based directly on the contractual language and,
therefore, draws its essence from the terms of the contract.

      The Agency then addresses the Union\'s statutory argument. In
support of its argument that the award is not contrary to 5 U.S.C. §
5542(b)(1), the Agency relies on a decision of the Comptroller General,
*Matter of Overtime Compensation-Work Performed At Home*, 65 Comp. Gen.
49 (1985), addressing the application of 5 U.S.C. § 5542(b)(1) to work
performed outside of an employee\'s normal working hours at an
employee\' s residence. The Agency maintains that that decision, which
found that employees working at their residences were not entitled to
the two-hour minimum for overtime work, controls the result in this
case.

# IV.     Analysis and Conclusions 

## A.     The award draws its essence from the agreement 

      For an award to be found deficient as failing to draw its essence
from the collective bargaining agreement, it must be established 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 purposes of the agreement as to manifest an infidelity to
the obligation of an arbitrator; (3) does not represent a plausible
interpretation of the agreement; or (4) evidences a manifest disregard
of the agreement. *United States Dep\'t of Defense, Defense Logistics
Agency, Defense Distribution Center, New Cumberland, Pa.*, 55 FLRA 1303,
1307 (2000) (Member Cabaniss concurring); *United States Dep\'t of Labor
(OSHA)*, 34 FLRA 573, 575 (1990).

      In this case, the Union argues that the Arbitrator improperly
interpreted the phrase \"called back into work\" as imposing a physical
return to the workplace prior to the payment of two hours of overtime.
The Arbitrator\'s interpretation, however, flows directly from the
language of the contract. It is not an irrational, unfounded or
implausible reading of the agreement. Accordingly, the Union has not
shown that the award fails to draw its essence from the parties\'
agreement. **\[ v57 p222 \]**

## B.     The award is not contrary to 5 U.S.C. § 5542(b)(1) 

      The Authority reviews questions of law raised by exceptions to an
arbitrator\'s 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 a standard of *de novo* review,
the Authority determines whether the arbitrator\'s legal conclusions are
consistent with the applicable standard of law. *See NFFE, Local 1437*,
53 FLRA 1703, 1710 (1998). In making that determination, the Authority
defers to the arbitrator\'s underlying factual findings. *See id.*

      The Union argues that the award is contrary to 5 U.S.C. §
5542(b)(1). It maintains that \"\[t\]here can be no reading of the
statute that imposes a requirement to travel.\" Exceptions at
6. [**\[n5\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21335) 
Instead, the Union reads 5 U.S.C. § 5542(b)(1) as requiring the payment
of a minimum of two hours of overtime pay anytime an employee performs
work outside of his regular working hours, regardless of whether or not
the employee must return to his or her place of employment to perform
that overtime work. Such a construction of 5 U.S.C. § 5542(b)(1),
however, is not supported by the language of the statute, its
legislative history or relevant precedent.

      The Union relies heavily on the use of the word \"or\" in 5 U.S.C.
§ 5542(b)(1) to justify its conclusion that this statute does not
require a return to the worksite before the entitlement to the two hour
minimum payment applies. In its view, the two hour minimum applies to
any overtime work performed outside of regular working hours or to
overtime that \"requires a return to his or her place of employment.\"
We conclude, however, that the plain language of 5 U.S.C. § 5542(b)(1)
does not support such a construction. In this regard, the Union
erroneously expands the scope of the relevant statute by construing the
clause \"a day when work was not scheduled for him\" as meaning any work
performed outside of an employee\'s regular working hours. That clause,
on its face, refers only to work performed on days when work is not
scheduled for that employee, rather than to all work performed outside
of regular working hours.

      Moreover, we conclude that the presence of the word \"or\" in 5
U.S.C. § 5542(b)(1) does not vitiate the requirement that employees who
perform overtime work on days when work is not scheduled for them return
to their places of employment as a prerequisite to the application of
the two-hour minimum overtime payment. Instead, the word \"or\" is used
only to differentiate the situation where employees are called back to
their place of employment to perform overtime work. The first clause
refers to situations when employees are called in to work on days when
they are not scheduled to work. The second clause, following the word
\"or\", refers to days when an employee has left his worksite and is
required to return to his place of employment to perform
work. [**\[n6\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21340) 

      The pertinent legislative history supports an interpretation of 5
U.S.C. § 5542(b)(1) that requires, in all circumstances, that employees
physically report to the workplace prior to the application of the
two-hour minimum payment. The Conference Report for 5 U.S.C. §
5542(b)(1) states that the statute:

> provides a minimum of 2 hours of pay at the overtime rate for any
> employee who is called back to perform unscheduled overtime work
> either on a regular workday after he has completed his regular
> schedule of work and left his place of employment or on one of the
> days when he is off duty.

Conf. Rep. No. 83-2665 (1954), *reprinted in* 1954 U.S.C.C.A.N. 3861,
3869. 5 U.S.C. § 5542(b)(1), then, provides for a minimum of two hours
of overtime only in situations where employees are physically called
back into the workplace to perform overtime, either after they have left
their place of employment or on days when they are off duty.

      Other entities reviewing 5 U.S.C. § 5542(b)(1) have also found
that the two-hour minimum overtime payment does not apply to work
performed at employees\' residences. In *Matter of Overtime
Compensation-Work Performed At Home*, 65 Comp. Gen. 49 (1985), the
Comptroller
General [**\[n7\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21347) *,*
after examining the pertinent legislative history, determined that the
primary purpose of the two-hour minimum was to assure adequate
compensation for employees for the inconvenience of having to prepare
for work and having to leave their residences to perform that work.
*Id.* at 51. Based on **\[ v57 p223 \]** those considerations, the
Comptroller General ruled that the two hour minimum did not apply to
work performed by employees at their residences.

      Based on our review of the above decision and the cited
legislative history, we conclude, contrary to the Union\'s assertion,
that the two hour statutory minimum does not apply where, as here, the
employee works at home. Here, the employees do not have to deal with the
inconveniences that motivated Congress in enacting 5 U.S.C. §
5542(b)(1), *i.e.*, having to leave their residences. Rather, the
employees receive telephone calls and pages at their residences and
perform the work there, and they do not have to prepare for work or
travel back to their worksite to perform the repairs. Accordingly, we
find that they are not entitled to a minimum of two hours overtime pay
under 5 U.S.C. §
5542(b)(1). [**\[n8\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21351) 

# V.     Decision 

      The Union\'s exceptions are
denied. [**\[n9\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21355) 

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**Footnote \# 1** for 57 FLRA No. 47

   Article 14, Section 7 provides:

> An employee called back in to work outside of his/her regularly
> scheduled hours of work shall be compensated for a minimum of two
> hours in accordance with the provisions of appropriate regulations of
> higher authority, regardless of whether the employee is required to
> work the entire two hours. An employee who is called in to work before
> his/her scheduled starting time and who works straight through his/her
> scheduled quitting time is entitled to overtime pay for the period of
> time which is outside of his/her regularly scheduled work shift.

**Footnote \# 2** for 57 FLRA No. 47

   Article 14, Section 8 of the parties\' collective bargaining
agreement mandates that overtime be paid in 15 minute increments.

**Footnote \# 3** for 57 FLRA No. 47

   The Agency did not except to this ruling and the matter is not before
the Authority.

**Footnote \# 4** for 57 FLRA No. 47

   5 U.S.C. § 5542(b)(1) states, \"unscheduled overtime work performed
by an employee on a day when work was not scheduled for him, or for
which he is required to return to his place of employment, is deemed at
least 2 hours in duration.\"

**Footnote \# 5** for 57 FLRA No. 47

   It is unclear whether this argument is meant to apply to overtime
just on days \"when work was not scheduled,\" or also to circumstances
where an employee has to \"return to his place of employment.\"
Regardless of what is meant, the analysis set forth *infra* would apply
to both circumstances set out in 5 U.S.C. § 5542(b)(1).

**Footnote \# 6** for 57 FLRA No. 47

   An employee who performs overtime work immediately following his or
her shift may only receive overtime payment for the time that he or she
has actually worked. *See* 5 U.S.C. § 5542(a). *See also AFGE*, *Local
2612*, 19 FLRA 1012 (1985).

**Footnote \# 7** for 57 FLRA No. 47

   Although Comptroller General decisions are not binding on the
Authority, those decisions possess precedential value. *See* *AFGE,
AFL-CIO, Local 3231*, 25 FLRA 600 (1987).

**Footnote \# 8** for 57 FLRA No. 47

   The employees would still be entitled to overtime pay in 15-minute
increments under their collective bargaining agreement. *See* note 2,
*supra*.

**Footnote \# 9** for 57 FLRA No. 47

   The Union also asserts, in passing, that the Authority should reverse
the award on the grounds that the Arbitrator refused to apply the
applicable statute in his decision. Although the Arbitrator did fail to
rule on the application of 5 U.S.C. § 5542(b)(1), we will not reverse or
remand the case for consideration of this issue, as we have already
conducted a *de* *novo* review of 5 U.S.C. § 5542(b)(1).