American Federation of Government, Employees, Local 4052, Council of Prison Locals, (Union) and U.S. Department of Justice, Federal Bureau of Prisons, Metropolitan Detention Center, Guaynabo, San Juan, Puerto Rico, (Agency)

[ v56 p414 ]

56 FLRA No. 57






May 16, 2000


Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exception to an award of Arbitrator Mona Miller 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 grievance alleging that the Agency had improperly compensated the grievants under 5 C.F.R. § 551.431, which governs pay for employees on standby duty or in an on-call status. For the reasons set forth below, we find that the Union has not demonstrated that the award is deficient. We accordingly deny the Union's exception.

II.     Background and Arbitrator's Decision

The Union represents unit employees at a correctional facility located in Guaynabo, Puerto Rico. On September 21, 1998, the Agency notified its employees that Hurricane George was expected to reach Puerto Rico within several hours. [n1]  To ensure the safety of its employees, as well as the continued operation of its facility, the Agency further notified employees that no one would be permitted to leave until further notice was given. As a result, employees were restricted to Agency premises and placed on 12-hour shifts -- 6:00a.m. to 6:00p.m. and 6:00p.m. to 6:00a.m. Employees who worked the day shift were compensated for each 24-hour period as follows:

  • 8 hours of regular pay;
  • 4 hours of overtime pay;
  • 4 hours of standby pay at the overtime rate; and
  • 8 hours of uncompensated sleep time.

          Although an empty inmate housing unit was provided for off-duty employees, not all staff chose to use it. Employees were, however, provided with cots and bedding no matter where they chose to spend their off-duty time. On the afternoon of September 22, the Agency declared that the emergency had ended and employees were permitted to leave the premises.

          In the grievance that was subsequently filed, the Union alleged that employees should have been compensated for the entire period of time that they were restricted to Agency premises. When the grievance was not resolved, it was submitted to arbitration on the following issue, as stipulated by the parties:

    Did the Agency violate 5 C.F.R. section 551.431 when staff was restricted to the institution from 9/21/[98] at 6AM until 9/22/[98] at 4PM during the emergency situation? [n2] 
    If so, what shall be the remedy?

Award at 2. [n3] 

      Before the Arbitrator, the Union alleged, as relevant here, that the employees at issue should have been compensated for the 8 hours that was designated as "sleep time" because they were required to remain in a state of readiness and, therefore, were not able to use the time effectively for their own purposes, as mandated by 5 C.F.R. § 551.431. The Union also alleged that the sleeping arrangements the Agency provided were inadequate and, therefore, did not meet the standards set forth in 5 C.F.R. § 551.432(a)(2).

      In addition, the Union claimed that employees were entitled to be compensated for "sleep time" pursuant to the Department of Labor's (DoL's) regulation set [ v56 p415 ] forth at 29 C.F.R. § 785.22. According to the Union, that regulation provides that if an employee is required to be on duty for 24-hours or more, the time designated as "sleep time" constitutes hours worked unless there is an express or implied agreement to the contrary.

      The Agency's response to the Union's claim alleged that the employees had been properly compensated under 5 C.F.R. § 551.431. In particular, the Agency disputed the Union's claim that employees were required to remain alert during the time designated for sleep. The Agency maintained that employees were expected to use their sleep time to be rested and refreshed and were not entitled to be compensated if they chose not to spend it that way. The Agency also maintained that it met the requisite conditions set forth in 5 C.F.R. § 551.432 by providing a housing unit in which employees could sleep and by providing cots for use in their offices. Arguing that there is no evidence to establish that any of the employees worked during the designated sleep time, the Agency claimed that the grievance should be denied.

      The Arbitrator agreed with the Agency's position and denied the grievance. In reaching this result, the Arbitrator found that Article 5 of the parties' collective bargaining agreement gave the Agency the right to "take whatever actions may be necessary to carry out the Agency mission during emergencies[.]" Award at 6. The Arbitrator also found that by restricting employees to its premises for the duration of the hurricane, the Agency was "assuring the safety of staff and the security of inmates." Id. The Arbitrator therefore found no violation of the parties' bargaining agreement.

      With regard to the Union's claims that the Agency violated 5 C.F.R. §§ 551.431 and 551.432, the Arbitrator found that the testimony of the Union's two witnesses did not establish that the Agency had failed to comply with either regulation. Instead, the Arbitrator found that both of the witnesses had been advised by their supervisors to "go . . . to sleep" or to "get some rest". Id. at 7, 8. In addition, the Arbitrator credited the testimony of the Agency's warden that employees were expected to get 5 to 8 hours of sleep or to at least rest if they did not sleep. In so doing, the Arbitrator rejected the Union's claim that employees were expected to remain in a state of readiness.

      Finally, the Arbitrator found that although employees were not expected to remain in a state of readiness, employees had been advised that all claims for work actually performed during unpaid time would be compensated. Nevertheless, the Arbitrator noted that the Agency had not been presented with any such claims. In these circumstances, the Arbitrator concluded that there were "no violations of contract, regulations, or law." Id. at 9.

III.     Positions of the Parties

A.     Union's Exception

      The Union excepts to the Arbitrator's award on the ground that the award is "contrary to established law, rule or regulation regarding the consistency of interpretations of the Fair Labor Standards Act by [DoL] and [OPM]." Exception at 1. In particular, the Union asserts that the Arbitrator erred in failing to consider whether the requirements set forth in 29 C.F.R. § 785.22 had been met.

      In support of this exception, the Union asserts, citing American Federation of Government Employees v. OPM, 821 F.2d 761 (D.C. Cir. 1987) (AFGE v. OPM), that it is well established that the Office of Personnel Management (OPM) must interpret the Fair Labor Standards Act (FLSA) in a manner that is consistent with DoL's interpretation of that statute. The Union further asserts that in AFGE v. OPM the court held that an OPM regulation was inconsistent with the FLSA and, consequently, invalidated it. Based on the court's discussion in that case, the Union submits that the legislative history of the 1974 amendments making the FLSA applicable to federal employees reflects a desire by Congress that OPM administer the FLSA so as to "assure consistency with the meaning, scope, and application established by the rulings, regulations, interpretations, and opinions of the Secretary of Labor which are applicable in other sectors of the economy." Exception at 8-9 (citing AFGE v. OPM, 821 F.2d at 769). As the OPM regulation on which the Arbitrator relied is inconsistent with its DoL counterpart, the Union maintains that the Arbitrator should have addressed it.

      In addition, based on its view that 29 C.F.R. § 785.22 is applicable to this proceeding, the Union contends that the Arbitrator erred by effectively eliminating the requirement that there be an express or implied agreement between an employer and its employees before sleep time can be deducted from hours of work. Moreover, if this requirement had been applied, the Union asserts that there clearly was no express agreement regarding pay deductions for sleep time, and no evidence of an implied agreement under any of the standards applied by the courts. The Union accordingly submits that the Arbitrator should have found "as a matter of law," that the Agency was required to compensate the grievants for the entire period of time that they were restricted to Agency premises. Id. at 12. [ v56 p416 ]

B.     Agency's Opposition

      In its opposition, the Agency asserts that the Union's exception should not be considered because it is premised on an issue that was not submitted to arbitration. According to the Agency, it is undisputed that the only issue formally submitted was whether it had violated 5 C.F.R. § 551.431. The Agency contends that although the Union cited 29 C.F.R. § 785.22 in its post-hearing brief, it never specifically requested the Arbitrator to decide whether that regulation had been violated and, if so, what the appropriate remedy would be. The Agency therefore urges the Authority to reject the exception.

      Assuming that the Union's exception is addressed, the Agency contends that the Authority "may not adjudicate whether a regulation issued by [OPM] is invalid because it conflicts with a regulation issued by DoL." Opposition at 6. Citing such cases as U.S. Department of the Air Force v. FLRA, 952 F.2d 446, 452 (D.C. Cir. 1991), the Agency explains that any challenge to the consistency of an OPM regulation with regard to the FLSA "must be brought in a more appropriate forum, where OPM is a party to the proceedings and where the validity of its regulation is at issue." Id. at 8. As the Authority "lacks the power" to assess whether an OPM regulation is inconsistent with DoL's interpretation of the FLSA, the Agency asserts that the Union's exception must be denied. Id.

IV.     Analysis and Conclusions

A.     Preliminary Matter

      At the outset, we note the Agency's allegation that the Union's exception is not properly before us because it is premised on an issue that was not submitted to arbitration. A review of the Arbitrator's decision, however, shows that 29 C.F.R. § 785.22 was advanced by the Union at the hearing. We, accordingly, find no merit to the Agency's allegation.

B.     The Award is Not Contrary to Regulation

      We construe the Union's contention that the award is contrary to law, rule or regulation as a claim that the award is inconsistent with 29 C.F.R. § 785.22. The Authority reviews the questions of law raised by the Union's exception, as well as the Arbitrator's award, de novo. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See National Treasury Employees Union, Chapter 50 and U.S. Department of the Treasury, Internal Revenue Service, Carolina District, Charlotte, North Carolina, 54 FLRA 250, 253 (1998).

      In 1974, the FLSA became generally applicable to federal employees. At that time, Congress gave the Civil Service Commission -- now OPM -- the authority to administer the FLSA, as amended, in the federal sector. See 29 U.S.C. § 204(f). Pursuant to that authority, OPM promulgated 5 C.F.R § 551.432, the regulation applied by the Arbitrator in resolving the instant grievance. The Union challenges the Arbitrator's application of the OPM regulation on the ground that it does not comport with DoL's interpretation of the FLSA set forth in 29 C.F.R. § 785.22. More specifically, the Union points out that unlike the OPM regulation, the comparable DoL regulation provides that sleep time constitutes hours of work where no express or implied agreement to the contrary is present. As Congress intended OPM regulations implementing the FLSA to be consistent with the regulations promulgated by DoL, the Union submits that the Arbitrator's failure to consider this regulatory requirement was "clear legal error." Exception at 8. We disagree.

      It is well-settled that in promulgating regulations implementing the FLSA, OPM is "obliged to exercise its administrative authority in a manner that is consistent with [that of] the Secretary of Labor[.]" AFGE v. OPM, 821 F.2d at 770. Nevertheless, it is also well-settled that the Statute does not authorize the Authority to "[pass] judgment on rules or regulations that OPM or any other federal agency has enacted." U.S. Department of Defense, Dependents Schools, Bulzbach Elementary School, Bulzach, Germany and Federal Education Association, 56 FLRA No. 24 (2000) (citing American Federation of Government Employees, AFL-CIO, National Council of Grain Inspection Locals v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986) (Congress did not intend the Authority to sit in review of other agencies' regulations)). See also Air Force, 952 F.2d at 452 (Authority has no power to adjudicate the validity of an OPM regulation).

      Based on the foregoing, we conclude that the Union's challenge to the validity of 5 C.F.R. § 551.431 -- an OPM regulation implementing the FLSA -- has not been brought in the appropriate forum. See National Treasury Employees Union v. Devine, 577 F. Supp. 738 (D.C.D.C. 1983), aff'd, 733 F.2d 114 (D.C. Cir. 1984) (union challenge to OPM regulation is a matter for district court). Therefore, as the Arbitrator's application of 5 C.F.R. § 551.431 was not in error and, as the Union [ v56 p417 ] does not otherwise contend that the award is inconsistent with this regulation, we find that the Union's contention provides no basis on which to conclude that the award is deficient.

C.     The Arbitrator Did Not Exceed Her Authority

      It is also possible to construe the Union's exception as a contention that the Arbitrator exceeded her authority by failing to address one of the Union's claims. More specifically, the Union alleges that the Arbitrator erroneously failed to address its claim that the Agency violated 29 C.F.R. § 785.22.

      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. U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996). Nevertheless, "the Authority, like the Federal courts, will accord an arbitrator's interpretation of a submission agreement and an arbitrator's formulation of the issue submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement." Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 518-19 (1986).

      In this case, the issue stipulated by the parties was "[d]id the Agency violate 5 C.F.R. [§] 551.431 when staff was restricted to the institution from 9/21/[98] at 6AM until 9/22/[98] at 4PM during the emergency situation?" Award at 2. Therefore, it is apparent that the issue, as stipulated, did not specifically concern whether the Agency violated 29 C.F.R. § 785.22. We note that the Arbitrator's decision shows that 29 C.F.R. § 785.22 was advanced by the Union at the hearing. Nevertheless, in our view, the Arbitrator's interpretation of the issue before her -- whether the Agency violated a regulation promulgated by OPM, rather than a regulation promulgated by DoL -- was entirely reasonable. In fact, as we discussed in section B above, the Arbitrator did not have the authority to assess whether the OPM regulation disputed by the Union was invalid.

      A review of the Arbitrator's decision also shows that it is directly responsive to the issue as stipulated by the parties. Accordingly, we conclude that the Arbitrator did not fail to resolve an issue submitted to arbitration. As such, we find no basis on which to conclude that the Arbitrator exceeded her authority.

V.     Decision

      The Union's exception is denied.


5 C.F.R. § 551.431, entitled "Time spent on standby duty or in an on-call status" provides, as relevant here:

      (a)     An employee will be considered on duty and time spent on standby duty shall be considered hours of work if:

(1)     The employee is restricted to an agency's premises, or so close thereto that the employee cannot use the time effectively for his or her own purposes; or
(2)     The employee, although not restricted to the agency's premises:
(i)     Is restricted to his or her living quarters or designated post of duty;
(ii)     Has his or her activities substantially limited; and
(iii)     Is required to remain in a state of readiness to perform work.

5 C.F.R. § 551.432, entitled "Sleep time" provides, as relevant here:

      (a)     Except as provided in paragraph (b) of this section, bona fide sleep time that fulfills the following conditions shall not be considered hours of work if:

(1)     The tours of duty is 24 hours or more;
(2)     During such time there are adequate facilities such that an employee may usually enjoy an uninterrupted period of sleep; and <