20:0039(5)CA - Justice and Bureau of Prisons (Washington, DC) and Federal Correctional Institution (Danbury, CT) and AFGE, Council of Prison Locals (C-33), Local 1661 -- 1985 FLRAdec CA



[ v20 p39 ]
20:0039(5)CA
The decision of the Authority follows:


20 FLRA No. 5

U.S. DEPARTMENT OF JUSTICE 
AND DEPARTMENT OF JUSTICE 
BUREAU OF PRISONS (WASHINGTON, D.C.) 
AND FEDERAL CORRECTIONAL INSTITUTION 
(DANBURY, CONNECTICUT) 

                              Respondents 

and 

AMERICAN FEDERATION OF GOVERNMENT 
EMPLOYEES, COUNCIL OF PRISON LOCALS 
(C-33), AFL-CIO, LOCAL 1661 

                               Charging Party 

                                                  Case No. 1-CA-40335

                           DECISION AND ORDER

   This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.

   Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and the parties' contentions, the
Authority finds:

   The complaint alleges that Respondent U.S. Department of Justice (the
Agency) violated section 7116(a)(1), (5) and (8) of the Statute /1/ by
directing Respondent's Bureau of Prisons and Federal Correctional
Institution, Danbury, Connecticut not to comply with a final and binding
arbitrator's award, in violation of section 7122(b) of the Statute, /2/
and that the latter violated section 7116(a)(1), (5) and (8) of the
Statute by failing to comply with such final and binding award, which
found, among other things, that an unpaid one-half hour "lunch" period
was not "duty free," and which required the Activity to pay backpay to
certain employees.

   As stipulated by the parties, on October 20, 1982, Arbitrator Gwiazda
issued an Opinion and Award concerning a grievance under a negotiated
agreement between American Federation of Government Employees, Council
of Prison Locals (C-33), AFL-CIO, Local 1661 (the Union) and Respondent
Bureau of Prisons, involving employees at the Federal Correctional
Institution, Danbury, Connecticut (FCI).  Among other things, the
arbitrator found that FCI violated the master agreement when it
unilaterally extended the straight 8 hour work day worked by Physician's
Assistants at FCI assigned to the 4:00 p.m.-- midnight (evening) shift
and the midnight-- 8:00 a.m. (morning) shift throughout the week, and
all three shifts on weekends and holidays.  These shifts were extended
by scheduling an unpaid 30 minute lunch period.  As a result of the
change, the duty hours on weekdays, weekends and holidays were:

         Day shift 7:45 a.m.-- 4:15 p.m.

         Evening shift 3:45 p.m.-- 12:15 a.m.

         Morning shift 11:30 p.m.-- 8:00 a.m.

In finding that this change violated the master agreement, the
arbitrator found that the contract was also violated in that the 30
minute lunch hour for the evening and morning shifts during the
workweek, and all shifts on weekends and holidays was not "duty free,"
since there was no other Physician's Assistant available to relieve the
employee from "duty" during that period.  Among other things, the
arbitrator ordered that Respondent FCI "honor" properly submitted
requests for compensation for the lunch periods worked in which there
was no relief from duty.  Thereafter, Respondent Department of Justice,
on behalf of Respondent Bureau of Prisons, filed exceptions to the
arbitrator's award and a request for a stay pursuant to section 2429.8
of the Authority's Rules and Regulations, arguing, inter alia, that the
award, in requiring backpay for certain unpaid lunch periods, was based
on an erroneous interpretation of the term "duty free" and would result
in payment of overtime in violation of law and regulation.  On March 29,
1984, the Authority issued its decision denying the exceptions, finding
that the Agency had failed to establish that the arbitrator's award is
deficient on any of the grounds set forth in section 7122(a) of the
Statute.

   As stipulated by the parties, Respondent Bureau of Prisons directed
FCI to determine that it was necessary for Physician's Assistants to
certify that they were required to perform work during their unpaid 30
minute lunch period as a condition precedent to being paid backpay for
these lunch periods pursuant to the arbitration award.  In such
certifications, the employees had to state that they were required to
respond to an emergency or to provide assistance during the lunch period
for which payment was being sought.  There exist no records indicating
whether any Physician's Assistant was required to respond to an
emergency or provide assistance during any of the lunch periods in
question.  To the date of the stipulation herein, no Physician's
Assistant has been paid for such lunch periods.  The lunch periods
affected are those for the evening and morning shifts every day, and the
day shift on Saturdays, Sundays, and holidays, between February 21, 1982
and May 15, 1983.  The General Counsel restricts the allegation of
non-compliance with the arbitrator's award to the nonpayment of backpay
to the affected employees for these lunch periods;  it is stipulated
that steps are being taken to comply with all other aspects of the
arbitrator's award.

   The Respondents argue, inter alia, that:  (1) there is no allegation
or stipulation of fact that Respondent Department of Justice
participated in any action alleged to be the basis for the charge and
complaint herein;  (2) there is no showing that the requirement of a
certification by affected employees as a precondition to being paid for
the lunch periods in question is inconsistent with the arbitrator's
award;  and (3) even assuming that the award requires payment for the
lunch periods without regard to whether the Physician's Assistants were
required to perform specific duties, such award requires an illegal
payment, and the Authority must reconsider its ruling on Respondent's
exceptions to the award.

   The General Counsel argues that the award does not authorize the
Respondents to precondition payment upon the employees' certifications,
and that the imposition of such requirement violates the award.  The
General Counsel further asserts that the argument that the award is
contrary to law is only an attempt by the Respondents to relitigate an
issue ruled upon by the Authority in its Decision denying Respondents'
exceptions to the award.

   In U.S. Soldiers' and Airmen's Home, Washington, D.C., 15 FLRA No.
26(1984), petition for review filed, No. 84-1439 (D.C. Cir. Aug. 24,
1984), the Authority held that language of section 7122(b) of the
Statute makes it clear that an agency must take the action required by
an arbitrator's award when that award becomes "final and binding," and
that an award becomes "final and binding" either when there are no
timely exceptions to an award filed under section 7122(a) of the
Statute, /3/ or when timely filed exceptions are denied by the
Authority.  /4/ In the circumstances of the instant case, it is clear
that the arbitrator's award is "final and binding" within the meaning of
section 7122(b) of the Statute.  Moreover, contrary to the contention of
the Respondents, imposing a precondition that employees must provide a
certification of specific duties performed during each lunch period for
which a claim for payment is made pursuant to the arbitrator's award as
a predicate for payment, is not consistent with the award.  Thus, the
arbitrator rendered an interpretation of the applicable clause of the
negotiated agreement and found that the 30 minute "lunch period"
initiated by Respondents did not qualify as non-paid time because it was
not "duty free." To now require as a predicate for payment for this time
a certification that specific duties were performed during that time
would violate the meaning and intent of the award and would constitute
in effect another attempt to have the award declared contrary to law and
regulation, an argument made by the Respondents and rejected by the
Authority in the Decision denying Respondent's exceptions to the award.
Accordingly, such an argument amounts to a collateral attack on the
Authority's Decision.

   The Authority concludes that, by imposing a requirement for
certification of specific duties performed during specific lunch periods
by employees claiming payment pursuant to the arbitrator's award for
such time, the Respondent Bureau of Prisons here is interfering with
FCI's ability to comply with the arbitrator's final and binding award in
violation of section 7122(b) of the Statute, thereby violating section
7116(a)(1) and (8) of the Statute.  /5/ However, as stipulated by the
parties, Respondent FCI imposed such requirement at the specific
direction of Respondent Bureau of Prisons, higher level agency
management in the Agency's chain of command, and there was no specific
action alleged to have been taken by Respondent Department of Justice
which interfered with or affected FCI's ability to comply with the
award.  Moreover, FCI, in imposing the certification requirement, was
merely acting as the agent of Respondent Bureau of Prisons, management
at the level of exclusive recognition.  Accordingly, in the absence of
evidence of any participation in the failure to comply with the
arbitrator's award by Department of Justice, the complaint shall be
dismissed as to that Respondent.  But see Department of Health and Human
Services, Region II, 15 FLRA No. 139(1984) (wherein the Authority held
that acts and conduct of higher level management may constitute an
unfair labor practice when such conduct prevents agency management at
the level of exclusive recognition from fulfilling its obligations
pursuant to section 7121 of the Statute in violation of the requirements
of section 7122 of the Statute).  Further, the Authority finds it would
not promote the purposes and policies of the Statute to find a separate
violation against FCI, a subordinate level of management acting as agent
for management at the level of exclusive recognition, and the complaint,
insofar as it alleges that FCI violated the Statute, shall be dismissed.
 Finally, having found that the Respondent Bureau of Prisons directed
action which violated a final and binding arbitrator's award and
constituted failure to comply therewith in violation of section 7122(b)
of the Statute, the Authority concludes that Respondent Bureau of
Prisons violated section 7116(a)(1) and (8) of the Statute.

                                  ORDER

   Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of Justice, Bureau of Prisons,
Washington, D.C., shall:

   1.  Cease and desist from:

         (a) Ordering Federal Correctional Institution, Danbury,
      Connecticut, to fail and refuse to fully implement Arbitrator
      Suzanne Butler Gwiazda's arbitration award rendered on October 20,
      1982.

         (b) In any like or related manner interfering with,
      restraining, or coercing employees in the exercise of their rights
      assured by the Statute.

   2.  Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:

         (a) Order Federal Correctional Institution, Danbury,
      Connecticut, to fully comply with Arbitrator Suzanne Butler
      Gwiazda's October 20, 1982 arbitration award, including the
      payment of properly submitted requests for compensation for
      lunch-hours worked by the evening and morning shifts every day,
      and the day shift on Saturdays, Sundays and holidays for the
      period from February 21, 1982 to May 15, 1983, without requiring
      certification of specific duties performed during specific lunch
      periods.

         (b) Post at the Federal Correctional Institution, Danbury,
      Connecticut, copies of the attached Notice on forms to be
      furnished by the Federal Labor Relations Authority.  Upon receipt
      of such forms, they shall be signed by the Director, Department of
      Justice, Bureau of Prisons, Washington, D.C., or a designee, and
      shall be posted and maintained for 60 consecutive days thereafter,
      in conspicuous places, including all bulletin boards and other
      places where notices to employees are customarily posted.
      Reasonable steps shall be taken to ensure that such Notices are
      not altered, defaced, or covered by any other material.

         (c) Pursuant to section 2423.30 of the Authority's Rules and
      Regulations, notify the Regional Director, Region I, Federal Labor
      Relations Authority, in writing, within 30 days from the date of
      this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., September 10, 1985

                                      Henry B. Frazier III, Acting
                                      Chairman
                                      William J. McGinnis, Jr., Member
                                      FEDERAL LABOR RELATIONS AUTHORITY



                         NOTICE TO ALL EMPLOYEES

PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF
TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS

                  WE HEREBY NOTIFY OUR EMPLOYEES THAT:

   WE WILL NOT order Federal Correctional Institution, Danbury,
Connecticut, to fail and refuse to fully implement Arbitrator Suzanne
Butler Gwiazda's arbitration award rendered on October 20, 1982.

   WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.

   WE WILL order Federal Correctional Institution, Danbury, Connecticut,
to fully comply with Arbitrator Suzanne Butler Gwiazda's October 20,
1982 arbitration award, including the payment of properly submitted
requests for compensation for lunch hours worked by evening and morning
shifts every day, and the day shift on Saturdays, Sundays and holidays,
for the period from February 21, 1982 to May 15, 1983, without requiring
certification of specific duties performed during specific lunch
periods.
                                      (Agency or Activity)

   Dated:
                                      By:  (Signature) (Title)

   This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.

   If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Federal Labor Relations Authority, Region I, whose address is:
 441 Stuart Street, 9th Floor, Boston, Massachusetts 02116, and whose
telephone number is:  (617) 223-0920.






--------------- FOOTNOTES$ ---------------


   /1/ Section 7116(a)(1), (5) and (8) provides:

   Sec. 7116.  Unfair Labor practices

         (a) For the purpose of this chapter, it shall be an unfair
      labor practice for an agency--

         (1) to interfere with, restrain or coerce any employee in the
      exercise by the employee of any right under this chapter;

                                 * * * *

         (5) to refuse to consult or negotiate in good faith with a
      labor organization as required by this chapter;

                                 * * * *

         (8) to otherwise fail or refuse to comply with any provision of
      this chapter.


   /2/ Sec. 7122 of the Statute provides:

   Sec. 7122.  Exceptions to arbitral awards

         (a) Either party to arbitration under this chapter may file
      with the authority an exception to any arbitrator's award pursuant
      to the arbitration (other than an award relating to a matter
      described in section 7121(f) of this title).  If upon review the
      Authority finds that the award is deficient--

         (1) because it is contrary to any law, rule, or regulation;  or

         (2) on other grounds similar to those applied by Federal courts
      in private sector labor-management relations;

the Authority may take such action and make such recommendations
concerning the award as it considers necessary, consistent with
applicable laws, rules, or regulations.

         (b) If no exception to an arbitrator's award is filed