Decisions, Final Board Decisions

OFFICE OF COMPLIANCE

LA 200, John Adams Building, 110 Second Street, S.E.

Washington, DC 20540-1999

_________________________

AFSCME Council 26, AFL-CIO,

 Petitioner,

 Labor Organization

 v. Case No. 04-LMR-02

 Date: December 23, 2004

OFFICE OF THE ARCHITECT

OF THE CAPITOL 

_________________________

Order Denying Request for Reconsideration

On August 9, 2004, the Architect of the Capitol filed this Request for Reconsideration of

our Decision and Order on Negotiability Issues, dated July 23, 2004, pursuant to Office

of Compliance Rule of Procedure §8.02. Petitioner, AFSCME Council 26, filed an

Objection to Reconsideration on August 24, 2004.

The Board of Directors has reviewed this matter pursuant to the requirements of 5

U.S.C. 7105(a)(2)(E) and 5 U.S.C. 7117, as adopted by §220(c) of the Congressional

Accountability Act of 1995 (2 U.S.C. 1351(c)).

The Architect’s Request for Reconsideration alleges that the Board "misapprehended the

nature of the brief notification telephone calls which the AOC employs to notify its

employees of certain work assignments." In support of its request for reconsideration,

the Architect incorrectly focuses solely on U.S. Department of Health and Human

Services, Social Security Administration and AFGE Local 1923, 37 FLRA 1469 (1990).

The Architect’s motion does not meet the criteria for reconsideration. In our Decision

we did not misapprehend the length and nature of the telephone calls at issue in

AFSCME’s request for negotiation. The length and nature of the telephone calls is not

dispositive of the issue of whether the proposal is negotiable.

Both the Architect and AFSCME narrowly focused their debate on HHS. While HHS is

helpful, it does not address the issue of negotiability. HHS addressed exceptions filed

from an Arbitrator’s award that denied overtime and differential pay for employees who

were required to respond to telephone calls outside of their normal tour of duty. The

FLRA disagreed with the Arbitrator and found that responding to telephone calls outside

the normal tour of duty qualified as compensable "hours of work" under 5 U.S.C. §5542

and 5 C.F.R. §550.112(a)(2).

This case is one where we were called upon to determine if the AFSCME proposal is

negotiable. We found that it was. The FLRA has determined that a proposal to pay

employees required to carry and respond to electronic "beepers" during non-duty days is

negotiable. American Federation of Government Employees, Council of Marine

Corps Locals C-240 and U.S. Department of the navy, U.S. Marine Corps, 39

F.L.R.A. 773, 782 (2/22/91); affd U.S. Department of Navy, U.S. Marine Corps and

Federal Labor Relations Authority, 962 F. 2d 1066, 1068 (D.C. Cir. 1992). The

Authority found it significant that the proposal did not require the Agency to pay

employees "merely for carrying and responding to beepers". Instead, the proposal

focused on those circumstances where the Agency "requires" the use of a beeper. Id., at

779. The Authority noted that the proposal does not interfere with the Agency’s rights to

direct employees or assign work pursuant to 5 U.S.C. 7106(a)(2)(A) and (B) since the

Agency retains the right to designate which employees are required to carry and respond

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to the beepers. Id., at 780.

The proposal submitted by AFSCME here has unmistakable parallels to that proffered in

Marine Corps. The AFSCME proposal is that:

Employees not working at the time of notification shall receive fifteen (15)

minutes overtime upon receipt of the notification. Designated essential

personnel shall be paid overtime each time they are required to call in for

instructions during non-working hours in excess of forty (40) hours in one

week.

Whether the employer calls and leaves a message on the home answering machine

requiring the employee to call in (as suggested by the first sentence) or the employee is

required to call in at a preset time (as suggested by the second sentence), the outcome is

the same under the Marine Corps analysis. The proposal stipulates that employees

"required" to "call in for instructions" or upon receipt of "notification" will be paid

fifteen (15) minutes of overtime. As in Marine Corps, the proposal does not interfere

with the Architect’s right to assign work, discipline, or direct employees. Even with the

language of the current proposal, the Architect would retain the right to determine which

employees are "required" to call for instructions, when they must call, etc. Therefore, the

proposal is negotiable.

We make no determination regarding the merits of the parties’ concerns and interests.

These are, however, matters that should be addressed and resolved at the negotiating

table. In the event the parties reach impasse, assistance may be sought pursuant to

Section 220 of the CAA which applies the impasse procedures of 5 U.S.C. §7119.

The Board denies the Architect’s Request for Reconsideration.

December 23, 2004

By: BOARD OF DIRECTORS OF THE OFFICE OF COMPLIANCE

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day December 2004 I served a copy of the Order of the

Board of Directors to the following parties in the following manner:

First-Class Mail Postage-Prepaid

& Facsimile Mail

Margaret P. Cox

Associate General Counsel

For Labor Management Relations

Office of the General Counsel

Architect of the Capitol

Ford House Office Building

Room H2-265A

2nd & D Streets, S.W.

Washington, D.C. 20515

202. 225-5927

Jay L. Power

Council Representative

Council Representative

Council 26/AFSCME

Capital Area Council of Federal Employees

729 15th Street, N.W., 7th Floor

Washington, D.C. 20005

202. 393-5759

cc: Don Maddrey

Carl Goldman

___________________

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