American Federation of Government Employees, Local 701 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Pekin, Illinois

[ v55 p631 ]

55 FLRA No. 105

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 701
(Union)

and

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
PEKIN, ILLINOIS
(Agency)

0-AR-3127

_____

DECISION

July 19, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator James A. McClimon filed by the Union under section 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 group grievance filed by the Council of Prison Locals, Local 701, American Federation of Government Employees (the Union), holding that the grievants were not entitled to overtime pay for a 30-minute lunch break in an 8½-hour workday. The Arbitrator found that the lunch break was established in the Master Agreement; was not amended by any other understanding or agreement; and was consistent with the Fair Labor Standards Act (FLSA) and its implementing regulations.

      Because we find that the award failed to resolve an issue raised by the Union, we remand it to the parties for resubmission to the Arbitrator, absent settlement, for clarification and additional factual findings.

II.     Background and Arbitrator's Award

      This matter was submitted to grievance arbitration pursuant to Article 32 of the Master Agreement between the Federal Bureau of Prisons (the Agency) and the Union. The Union represents employees of the Federal Correctional Institution in Pekin, Illinois (FCI, Pekin). FCI, Pekin has four separate housing units known as teams Illinois, Indiana, Missouri and Iowa. The grievance concerns members of teams Indiana and Illinois. Award at 4.

      From October, 1994, to June, 1996, teams Illinois and Indiana worked a 7:30 a.m. - 4:00 p.m. tour of duty. This tour included an unpaid, duty free, 30-minute lunch. Id.

      In June of 1996, the Agency honored a request by the Union and changed the Indiana and Illinois teams' tour of duty to a straight 8-hour day. This tour had no lunch break and was scheduled between 8:00 a.m. and 4:00 p.m. Id. at 4-5.

      Approximately 18 months later, on December 10, 1997, the Associate Warden sent a memo to the Chief Steward of the Union. The pertinent portions of that memo stated that the staff would be required to once again take a lunch break and that this issue was non-negotiable. The new tour of duty reverted to the 7:30 a.m. -4:00 p.m. schedule, with a 30-minute lunch period. This tour was set to begin on December 28, 1997. Id. at 5.

      As a result, the Chief Steward sought and received a meeting with the Associate Warden. According to the Union, during the meeting the Associate Warden declared that he reinstated the 8½-hour tour of duty to make sure members of the team, if necessary, were available to work during the unpaid lunch. Id.

      The Arbitrator found that during the lunch period, members of teams Illinois and Indiana were allowed to leave FCI, Pekin. In addition, he found that the Agency had not ordered the staff to work during the lunch period. Id.

      At the hearing, the parties gave the Arbitrator leave to frame the issue. The Arbitrator agreed with the Union's version of the issue, which read, "Has the [A]gency violated the Collective Bargaining Agreement and the FLSA by refusing to pay the [g]rievants for 30-minutes overtime they incur each duty day. If so, what shall the remedy be[?]" Id. at 2.

      The Arbitrator concluded that the Agency had the right to schedule work unless restricted by a collective [ v55 p632 ] bargaining agreement. After reviewing the Master Agreement, the Arbitrator found that it specifically allowed the Agency to schedule work without restriction. [n2]  The Arbitrator declined to find that any subsequent agreements restricted the Agency's contractual right to return the staff to an 8½-hour tour of duty. Id. at 8. In doing so, he noted that the Master Agreement permitted the parties to enter into written understandings intended to implement the Master Agreement, and prohibited either party from unilaterally changing any written understanding. Id. at 7.

      Finally, the Arbitrator rejected the Union's assertion that the 30-minute lunch period qualified for overtime under the statutory and regulatory definition of "hours worked." The Arbitrator concluded that the 30-minute lunch break was duty free; the grievants were not required to be on the premises; and they were not required to work during the break. However, the Arbitrator noted that it was common for staffers only to take one or two lunches a week because of their work activities. Id. at 5-6. Despite this, the Arbitrator found that neither the FLSA, nor Federal Regulations, entitled the grievants to receive overtime for their lunch break. Id. at 8-9.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the Arbitrator exceeded his authority by improperly amending the Master Agreement in violation of Article 32(f)(1)&(2). [n3]  Exceptions at 3. Specifically, the Union asserts that the Master Agreement does not require all subsequent understandings to be reduced to writing. Therefore, according to the Union, the Arbitrator exceeded his authority when he interpreted Article 4(c) as allowing only written understandings between the parties to not be changed unilaterally. [n4]  Id. at 4; Award at 7.

      The Union also claims, "Article 4 Section (c) does not mandate or even suggest that understandings or practices must be in writing as the Arbitrator ruled. . . . " Exceptions at 4.

      Furthermore, the Union maintains the Arbitrator failed to consider that a past practice was established between the parties creating an eight-hour day. With respect to this contention, the Union claims that the evidence of record (time schedules signed by both parties and the testimony) clearly established an understanding between the parties that eliminated the lunch period. Exceptions at 3-4.

      The Union further argues that the Arbitrator erred in finding that the 30-minute lunch is not "hours worked" under the FLSA or Federal Regulations. In support of this argument, the Union advances three theories. First, the Union asserts that the grievants were required to spend the entire 8½-hours on the Agency's premises and on "duty." Exceptions at 3, 6. Second, the Union asserts that the reasoning behind reinstating the 8½-hour work day was to make sure that the staff was available, if needed, to work during the 30-minute unpaid lunch. Id. at 5; Award at 5. As such, the Union argues that the lunch break was for the benefit of the employer and should be counted as "hours worked." Exceptions at 5. Third, the Union alleges that the employees were "suffered or permitted" to work and, as such, should be compensated under the FLSA.

B.     Agency's Opposition

      The Agency contends that the Arbitrator did not exceed his authority when he interpreted the Master Agreement. Rather, the Agency argues he merely performed his duty to resolve the issue submitted to arbitration by interpreting and applying the Master Agreement of the parties. Opposition at 8.

      The Agency further maintains that the Arbitrator found no evidence of an agreement, written or otherwise, that would restrict the Agency's contractual right to return the staff to an 8½-hour day. Id.; Award at 8. Therefore, the Agency contends that the Union's allegation that Article 4(c) was amended by the Arbitrator has no bearing on the award. Opposition at 6-7.

      Moreover, the Agency asserts that the Arbitrator's award is rationally derived from the Master Agreement. Id. at 5-6. To bolster this contention, the Agency maintains that the Arbitrator's award rests squarely on a reasonable interpretation of the Master Agreement, especially Articles 4(c), 5(b), and 18(a). Hence, the Agency asserts that the "Union has presented no facts and circumstances to demonstrate that the Arbitrator's award cannot be derived from the agreement (in any rational way)." Id. at 7.

      With respect to the Union's "past practice" argument, the Agency asserts that this contention was raised for the first time in the Union's exceptions and, as such, should be dismissed. Moreover, the Agency alleges that even if not dismissed on these grounds, the Arbitrator made a factual finding that no "understanding" existed [ v55 p633 ] between the parties eliminating the lunch period. Id. at 4-5. The Agency contends that this exception is mere disagreement with the factual determinations and reasoning of the Arbitrator. Id. at 5.

      Finally, as to the Union's argument that the Arbitrator's award is inconsistent with the FLSA, the Agency reiterates that the Arbitrator's factual findings are consistent with the FLSA in that the grievants were not required to remain on the premises during lunch; they were "duty free"; and the 8½ hour workday does not require them to work during their lunch break. Id. at 9. Accordingly, the Agency maintains this ruling is compatible with 5 C.F.R. § 551.411(c), which states that bona fide meal periods shall not be considered work. Id. at 9-10. Ultimately, the Agency contends, this exception, too, is merely a factual determination by the Arbitrator with which the Union disagrees. Id. at 10.

IV.     Analysis and Conclusions

A.     The Arbitrator did not Exceed his Authority

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. United States Small Business Administration and American Federation of Government Employees, Local 2951, 55 FLRA 179, 183 (1999).

      Here, the Union asserts that the Arbitrator exceeded his authority by "amending" Article 4(c) of the Master Agreement. This contention has its genesis in Article 32, Section f of the Master Agreement, which states that an arbitrator may not "add to, subtract from, disregard, alter, or modify" any portion of the Master Agreement. Specifically, the Union argues that the Arbitrator altered the plain language of Article 4(c) to hold that only written agreements between the parties may not be unilaterally changed.

      In reaching his conclusions, the Arbitrator assessed Article 4(c), Article 18(a) and Article 5(b). [n5]  After analyzing these contract provisions, and the evidence, the Arbitrator concluded that the Agency had the right to set the tour of duty. Furthermore, he found that there was no evidence of any "agreement" which precluded FCI, Pekin from exercising this right. Award at 8.

      We conclude that the Arbitrator did not exceed his authority with respect to his interpretation and application of the Master Agreement, in particular Article 4(c). The Arbitrator exercised his power under both the collective bargaining agreement and Authority case law to interpret provisions of the agreement. The Union's exception is merely an attempt to recast the Arbitrator's contract interpretation as an improper contract modification. However, the Union has failed to establish that the Arbitrator altered, amended or modified the collective bargaining agreement and, thereby, disregarded specific limitations on his authority. See American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 98 (1996); U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1686 (1996). As the Union does not make any claim that the Arbitrator otherwise exceeded his authority, we deny this exception.

B.     The Award Does Not Fail to Draw its Essence From the Agreement

      The Union claims, "Article 4 Section (c) does not mandate or even suggest that understandings or practices must be in writing as the Arbitrator ruled. . . . " Exceptions at 4. We construe this argument as a contention that the Arbitrator's award fails to draw its essence from the Master Agreement. See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Houston, Texas and American Federation of Government Employees, Council 215, 46 FLRA 529, 533 (1992) (finding that "although the Union argues that the [a]rbitrator exceeded her authority in connection with her interpretation . . . of the agreement, . . . this argument also constitutes an assertion that the award fails to draw its essence from the agreement.")

      In order for an award to be found deficient because it does not draw its essence from the collective bargaining agreement, a party must show 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 the purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project and National Federation of Federal Employees, Local 341, 55 FLRA 152, 155 (1999); Panama Canal Commission and International Organization of Masters, [ v55 p634 ] Mates and Pilots, Panama Canal Pilots Branch, 54 FLRA 1316, 1322-23 (1998).

      The Arbitrator interpreted Article 4(c) to allow the Agency and Union to enter into written understandings to implement the terms and conditions of the Master Agreement, and to prohibit both parties from unilaterally changing any written understanding. Award at 7. He further stated:

The tour of duty was changed because the Agency honored the Union's request that staff no longer wanted a 30-minute lunch period. The Union now asserts the Agency violated a mutual agreement which allowed staff to work the 8-hour tour of duty. However, there is no written agreement or other understanding reduced to writing, between the Agency and Union, which implements this change in the tour of duty. Specifically, there is no evidence indicating that this "agreement" somehow restricted the Agency's contractual right to return staff to an 8½ hour tour of duty.

      Id. at 8.

      The findings of the Arbitrator, including his interpretation of Article 4(c), are given deference. See American Federation of Government Employees, Local 2004 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania, 55 FLRA 6, 9 (1998) (New Cumberland). The fundamental determination is whether the Arbitrator's interpretation is irrational, implausible, unfounded, or evidences a manifest disregard of those provisions. None of those factors are present with respect to the Arbitrator's interpretation in this case. Accordingly, the Union's exception is denied.

C.     The Exception Pertaining to Past Practice is Barred by Section 2429.5 of the Authority's Regulations

      Under section 2429.5 of the Authority's Regulations, we will not consider issues that could have been, but were not, presented to an arbitrator. American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 32 (1995); International Federation of Professional and Technical Engineers, Local 28, Lewis Engineers and Scientists Association and National Aeronautics and Space Administration, Lewis Research Center, Cleveland Ohio, 50 FLRA 533, 536 (1995). Here, from a review of the award, the Union's exceptions, and the Agency's opposition, it is apparent that, as the Agency contends, the Union failed to argue before the Arbitrator that a past practice existed between the parties. Rather, the Union asserted a violation of a specific agreement allegedly reached with the Agency in June, 1996. Award at 6. Similarly, the Union's exceptions, though couched in terms of past practice, in fact contend that the Agency violated the alleged June, 1996 agreement. Exceptions at 3. Moreover, the Arbitrator adopted the Union's own statement of the issue. That statement failed to contend that the Agency had violated a past practice, but rather, alleged a violation of the collective bargaining agreement between the parties. Award at 2. As such, there is no evidence in the award, or the subsequent party filings, indicating that the Union raised this issue before the Arbitrator. Accordingly, the Union is precluded under section 2429.5 from doing so for the first time here.

D.     Additional Findings of Fact are Needed to Determine Whether the Award is Contrary to Law

      The Authority reviews questions of law raised by a party's exceptions de novo. New Cumberland, 55 FLRA at 9; National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir 1994)). De novo review requires the Authority to assess whether the legal conclusions of the arbitrator are consistent with the applicable standard of law, based on the underlying factual findings. New Cumberland, 55 FLRA at 9; National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (NFFE, Local 1437).

      The Authority has previously stated, "[i]t is well-settled that under the FLSA time set aside for eating is not work for purposes of compensation unless it involves activities `controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer. . . .'" American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 621 (1997) (Fort Rucker) (citing Armour & Co. v. Wantock, 323 U.S. 126, 132 (1944)). Under the FLSA, and as defined by regulation, a "bona fide meal period" is not included in "hours of work." 5 C.F.R. § 551.411(c). [n6]  While a "bona fide meal period" is not defined in 5 C.F.R. part 551, it is defined in 29 C.F.R. part 785, which implements the FLSA in the private sector. Fort Rucker, 53 FLRA at 621 n.5. Under 29 C.F.R. § 785.19, in order for a break to be considered a "bona fide meal period" it needs to be at least 30-minutes in length, except under special circumstances not pertinent [ v55 p635 ] here, and the employee must be completely relieved from duty for the purpose of eating.

      Furthermore, in the event that employees may be called upon to work during their lunch period, a finding as to the frequency of these interruptions must be considered in assessing whether the time is compensable. Only meal periods that are actually interrupted to perform work on more than a rare basis may be compensable. U.S. Department of Transportation, Federal Aviation Administration, Chicago, Illinois and National Air Traffic Controllers Association, 41 FLRA 1441, 1450-51 (1991) (referring to Baker v. U.S., 218 Ct. Cl. 602, 622 (1978) (when meals were rarely interrupted for performing work, the time was not compensable, despite the "on-call" status of the employees)).

      Contrary to the Union's argument that the grievants were required to be on the premises and, as such, they were not "duty" free for a half-hour, the Arbitrator specifically found that the lunch period was duty free. Award at 9. Moreover, the Union's assertion that the employees were not allowed to leave the premises was also contradicted by the factual findings of the Arbitrator. Id. at 8-9. Factual findings by an arbitrator are given deference by the Authority, because the parties have bargained for the facts to be found by an arbitrator chosen by them. U.S. Department of the Navy, Naval Underseas Warfare Center, Newport, Rhode Island and National Association of Government Employees, Federal Union of Scientists and Engineers, 54 FLRA 1495, 1500 (1998). The facts as found by the Arbitrator fail to support the Union's contention that the grievants were required to remain on the premises during their lunch period.

      The Union also argues, "since [the] Associate Warden said he wanted the Grievants available for work that the 30 minutes is for the benefit of the Agency and therefore hours of work." Exceptions at 5. We interpret this argument as alleging that the employees remained "on-call" during their lunch break for the benefit of the Agency.

      This argument is also not convincing. While it is true that where employees are more than rarely interrupted to perform work by their employers during their lunch break, such time may be compensable, here, the Arbitrator specifically found that the Agency had not ordered the grievants to work at anytime during the lunch period. Award at 5. Furthermore, in the event that the employees were required to work through their lunch break, the Arbitrator found that the Master Agreement allows these employees, with supervisory approval, to take their lunch at another point in the day. Id. at 9.

      To summarize, the Arbitrator found as a matter of fact that the lunch break involved was 30-minutes in duration, that the grievants were duty free and allowed to leave the premises during their lunch break, and that the grievants have never been required to work during their lunch break. As such, the Arbitrator's factual findings support the legal conclusion that the 30 minutes in question constitute a "bona fide meal period" and accordingly, are not "hours of work." Therefore, the award is not contrary to law in this respect, and the Union's exceptions are denied in so far as they raise the above arguments.

      One final issue remains. The Union quotes the definition of "hours worked," and states that the term includes "all time during which an employee is suffered or permitted to work whether or not he is required to do so." Exceptions at 4. This same argument was made to the Arbitrator. The award, however, fails to resolve the issue of whether the grievants were suffered or permitted to work during their lunch period. Moreover, although the Arbitrator stated that employees typically worked through 2-3 meal periods per week, he did not make additional findings necessary to permit a de novo evaluation of this argument. Where an arbitrator has not made sufficient factual findings for the Authority to assess or determine an arbitrator's legal conclusions, and those findings cannot be derived from the record, we will remand. U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and National Air Traffic Controllers Association, 55 FLRA 322, 328 (1999); NFFE, Local 1437, 53 FLRA at 1710.

      Accordingly, this matter is remanded to the parties for submission to the Arbitrator, absent settlement, for the limited purpose of requiring the Arbitrator to make appropriate factual findings and to determine whether the Agency "suffered or permitted" the grievants to [ v55 p636 ] work during their lunch breaks. We note that "suffered or permitted to work" is defined in 5 C.F.R. § 551.104 to mean: (1) any work performed by an employee for the benefit of the agency, whether requested or not; (2) provided the employee's supervisor knows or has reason to believe that the work is being performed; and (3) provided the supervisor has an opportunity to prevent the work from being performed. See generally, General Services Administration and American Federation of Government Employees, Council 236, 37 FLRA 481, 484 (1990). Further, if the Arbitrator finds that the grievants were suffered or permitted to work, the grievants may be compensated only for the hours they were suffered or permitted to work, and not for all meal periods. 5 C.F.R. Part 551. Finally, the factual findings in the original award need not be revisited and will continue to receive deference by the Authority in this matter.

V.     Decision

      We remand the award to the parties for submission to the Arbitrator, absent settlement, for clarification of the award and factual findings concerning whether the grievants were "suffered or permitted" to work during any lunch periods.

      The Union's remaining exceptions are denied.


Opinion of Member Cabaniss, dissenting in part:

      While I concur with the majority's denial of the above Union exceptions, I respectfully dissent from the decision to remand this matter. I believe that the Union failed to sufficiently raise a "suffered or permitted" argument either before the Arbitrator (based on the record before us) or in its exceptions. Even if one were to find the issue raised, however, it would constitute nothing more than a bare assertion, and I fail to see why that bare assertion would not be summarily disposed of, in accordance with our precedent. See, e.g., U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and National Air Traffic Controllers Association, 55 FLRA 322, 326 (1999); American Federation of Government Employees, Local 3615 and Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 54 FLRA 494, 499 (1998); U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210, 1215 (1996). Accordingly, I would find no need, based on this record, to remand this matter to the Arbitrator for further clarification. [ v55 p637 ]


Appendix

1.     Article 4 - Relationship of this Agreement to Bureau Policies, Regulations and Practices

Section a.      In prescribing regulations relating to personnel policies and practices and to conditions of employment, the Employer shall have due regard forthe obligation imposed by (Fair Labor Standards Act) . . . The Employer further recognizes its responsibility for informing the Union of changes in working conditions at the local level.

. . . .

Section c.      On matters which are not covered insupplemental agreements at the local level, all writtenbenefits, or practices and understandings between theparties implementing this Agreement, which are negotiable, shall not be changed unless agreed to in writing by the parties.                                   

2.     Article 5 - Rights of the Employer

Section b.      Nothing in this Article shall precludethe Employer and the Union from negotiating:

2.     at the election of the Employer at the National level, . . . tour of duty, . . .

3.      Article 18 - Hours of Work

Section a.      The basic workweek will consist of 5 consecutive workdays. The standard workday will consist of 8 hours with an additional 30 minute non-paid lunch period during which the employee will be duty free.However, there are shifts and posts for which the normal workday is 8 consecutive hours without a non-paid, duty free lunch.

On posts which include scheduled lunch breaks, lunchperiods will ordinarily be scheduled near the middleof the shift, beginning no earlier than 3 hours andno later than 5 hours after the start of the shift.If, for any reason, employees find it impossible to take a lunch break at the normal time, they will notifythe supervisor so that appropriate arrangements can be made. The employee may not independently decide, for example, to forgo the lunch period and thereby extend the workday by 30 minutes or leave work 30 minutes early.

. . . .

Section f.      Except for those employees on sick andannual leave relief and except at the time of quarterlyroster changes, in accordance with section C. of thisArticle, the minimum time off between shifts will be 7 ½ hours . . .

4.     Article 32 - Arbitration

Section f. . . . The arbitrator shall have no powerto add to, subtract from, disregard, alter, or modify any of the terms of:

1.     This agreement; or

2.     Published Federal Bureau of Prisons policies or regulations.





Footnote # 1 for 55 FLRA No. 105

   Member Cabaniss' opinion, concurring in part and dissenting in part, appears at the end of this decision.


Footnote # 2 for 55 FLRA No. 105

   See Article 5 of the Master Agreement, which is set forth in the Appendix.


Footnote #