United States Department of Justice, Federal Bureau of Prisons, Management and Specialty Training Center, Aurora, Colorado (Agency) and American Federation of Government Employees, Council of Prison Locals C-33 (Union)

[ v56 p943 ]

56 FLRA No. 158

UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
MANAGEMENT AND SPECIALTY TRAINING CENTER, AURORA, COLORADO
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL OF PRISON LOCALS C-33
(Union)

0-AR-3288

_____

DECISION

November 30, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Joe L. Levy filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.

      The Arbitrator determined that the Agency violated the parties' agreement by changing work schedules to require instructors to take a 1-hour lunch period. As a remedy, the Arbitrator awarded all affected employees retroactive overtime or compensatory time.

      For the following reasons, we find that the award is contrary to 5 C.F.R. § 551.411(c) (2000), and remand the case to the parties for resubmission to the Arbitrator, absent settlement, for a determination of whether an alternative remedy is appropriate. We deny the Agency's other exceptions.

II.     Background and Arbitrator's Award

      The Agency had an informal practice of requiring training instructors to take a 1-hour, non-duty lunch period in order to accommodate the students whom they instructed. After several years, the Agency issued a memorandum formalizing this practice.

      The Union filed a grievance that, when not resolved, was submitted to arbitration, where the Arbitrator set out the following issue:

Did the Agency violate the contract (Article 18, Section a) when it assigned the Grievant to a schedule requiring him to work eight hours with a scheduled one hour duty free lunch period on those occasions when he is required to function as a training specialist? If so, what shall be the remedy?[ [n2] ]

Award at 1.

      The Arbitrator determined that the Agency acted improperly by unilaterally extending the instructors' lunch period. The Arbitrator found that the terms of the parties' agreement were clear and unambiguous, and required the Agency to schedule employees to an 8-hour work day with a half hour, non-paid, duty-free lunch period. See id. at 6. The Arbitrator found that the Agency's informal practice of requiring a 1-hour lunch period did not create a past practice that modified the terms of the agreement. See id.

      The Arbitrator also found that the Agency was obligated to bargain with the Union on changes to the work schedule pursuant to Article 3, Section d of the parties' agreement. [n3]  See id. at 6. The Arbitrator determined that there was "[n]o dialog occurring between the parties" and "[n]o mention [by the Agency] of a desire to negotiate[.]" Id. at 7. Accordingly, the Arbitrator sustained the Union's grievance and ordered the Agency to provide retroactive overtime or compensatory time to the grievant and other employees who had taken 1-hour, non-paid, duty-free lunch periods while working as instructors. See id. [ v56 p944 ]

III.     Agency's Exceptions

      The Agency claims that the Arbitrator erred by failing to give effect to the parties' established past practice. According to the Agency, "[a] past practice may be established that modifies inconsistent terms of the parties' agreement." Exceptions at 9. The Agency claims that there was a long-standing and accepted practice for instructors to work 8-hour shifts and take 1-hour lunch periods, and that the Arbitrator explicitly agreed that the practice existed.

      In addition, the Agency asserts that the award is contrary to management's right to assign work under § 7106(a)(2)(B) of the Statute. According to the Agency, this right includes the right to assign overtime, determine when overtime will be performed, and change an employee's tour of duty or hours of work. See id. at 6.

      Finally, the Agency claims that the award of overtime is contrary to law because "[t]ime set aside for eating is not compensable for purposes of overtime under the Fair Labor Standards Act (FLSA)." Id. at 11. Because the employees were not required to work during the lunch period and duty-free lunch periods are not compensable, the Agency asserts that the employees are not entitled to overtime pay or compensatory time.

IV.     Analysis and Conclusions

A.     The Agency has not Established that the Award is Deficient because the Arbitrator Failed to Give Effect to a Past Practice

      In reviewing an arbitrator's award concerning whether a past practice has altered a contract term negotiated by the parties, the Authority considers the issue to be one of contract interpretation. See PASS, 56 FLRA 124, 125 (2000); United States Dep't of the Navy, Navy Public Works Ctr., San Diego, Cal., 48 FLRA 679, 684 (1993); United States Dep't of the Treasury, United States Customs Serv., Region IV, Miami Dist., 41 FLRA 394, 398 (1991). An allegation that an arbitrator erred in this regard does not provide a basis for finding the award contrary to law. See PASS, 56 FLRA at 125.

      In reviewing an arbitrator's interpretation of an agreement, we apply the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See id. at 124. Under this standard, the Authority will review the award to determine whether it is deficient as failing to draw its essence from the parties' agreement. See id. The award will be found deficient on this ground when the appealing party establishes one of the following: (1) the award cannot in any rational way be derived from the agreement; (2) the award is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) the award does not represent a plausible interpretation of the agreement; or (4) the award evidences a manifest disregard of the agreement. See id.

      Here, the Arbitrator found that Article 18, Section a of the parties' agreement was plain and unambiguous. See Award at 6. The Arbitrator concluded that although the Agency had in fact required instructors to take a 1-hour lunch period, that informal practice did not modify the written terms of the agreement. The Agency has failed to demonstrate that this determination is irrational, implausible, or unfounded, or that it otherwise disregards the agreement. Therefore, there is no basis for finding the award deficient on this ground.

      Accordingly, we deny the exception.

B.     The Award is not Inconsistent with Management's Right to Assign Work under § 7106 of the Statute

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under § 7106(a) of the Statute is set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that the award affects a management right under § 7106(a), the Authority applies a two-prong test to determine if the award is deficient. Under prong I, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. See id. at 153. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done had management not violated the law or contractual provision at issue. See id. at 154.

      Section 7106(a)(2)(B) of the Statute reserves to management officials the authority to assign work, which encompasses the right to determine when the assigned work will be performed. See NAGE, Local R1-25, 21 FLRA 83, 84 (1986). The decision to change the starting and quitting times of a shift constitutes an exercise of an agency's right to assign work. See Nat'l Weather Serv. Employees Org., 37 FLRA 392, 399-400 (1990). Because the award at issue restricts the Agency's ability to change its employees' hours of work, it affects management's right to assign work. [ v56 p945 ] Accordingly, the award must be evaluated under the BEP framework.

1.     Prong I

      As relevant here, § 7106(b)(1) provides that an agency may elect to negotiate on the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty[.]" In determining whether a proposal is within the scope of 7106(b)(1), the Authority assesses whether the proposal concerns: (1) the numbers, types, and grades; (2) of employees or positions; (3) assigned to any organizational subdivision, work project, or tour of duty. See NAGE, Local R5-184, 51 FLRA 386, 394 (1995).

      The Authority has held that a proposal concerns the "numbers" of employees within the meaning of § 7106(b)(1) "regardless of whether the proposal would increase, decrease, or maintain the number that the agency proposes to assign or has assigned." NAGE, Local R5-184, 52 FLRA 1024, 1034-35 (1997). The Authority has defined the phrase "tour of duty" as the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek. See id.

      In this case, the Arbitrator enforced Article 18, Section a of the parties' agreement, requiring the standard workday to consist of 8 hours with an additional 30-minute lunch period. This provision requires the Agency to maintain a particular tour of duty (an 8-hour workday) for all bargaining unit employees, thus preventing the Agency from assigning any number of bargaining unit employees to a different tour of duty. The Authority has found other provisions establishing similar tours of duty bargainable at an agency's election under § 7106(b)(1) of the Statute. See, e.g., GSA, Nat'l Capital Region, 42 FLRA 121, 128 (1991) (holding that a provision stating the basic workweek for employees established tours of duty under § 7106(b)(1) of the Statute); United States Dep't of the Navy, Phila. Naval Shipyard, 39 FLRA 590, 598-99 (1991) (holding that a contract provision establishing tours of duty reflected the agency's election to bargain under § 7106(b)(1)); Dep't of the Air Force, Scott Air Force Base, Ill., 33 FLRA 532, 541-43 (1988) (holding that a change in employees' starting and quitting times is a change in their tours of duty), aff'd, 893 F.2d 380 (D.C. Cir. 1990). Because the provision here prescribes the number of employees to be assigned to a tour of duty, it was negotiated pursuant to § 7106(b)(1) of the Statute.

      Accordingly, we find that the award satisfies prong I of the BEP framework.

2.     Prong II

      Prong II of the BEP framework determines whether the award properly reflects a reconstruction of what the Agency would have done had it not violated the contract provision. See BEP, 53 FLRA at 154. Here, the Arbitrator awarded overtime pay or compensatory time as a remedy for the Agency's violation of the parties' agreement. As discussed infra at subsection (C), overtime pay in these circumstances violates 5 C.F.R. § 551.411(c). As the remedy is deficient on this ground, it is not necessary to determine whether the remedy properly reconstructs what the Agency would have done had it not violated the contract provision. [n4] 

C.     The Award of Overtime Pay is Contrary to 5 C.F.R. § 551.411(c)

      Under 5 C.F.R. § 551.411(c), "bona fide meal periods shall not be considered hours of work[,]" and thus are not creditable for the purpose of determining overtime pay. The Authority has held that a bona fide meal period "must be at least 30-minutes in length and the employee must be completely relieved from duty for the purpose of eating." United States Dep't of the Air Force, Travis Air Force Base, Cal., 56 FLRA 434, 437 (2000) (Travis Air Force Base). The Authority, applying this standard, has held that an award ordering compensation for hours of work that include bona fide meal periods is contrary to 5 C.F.R. § 551.411. See id.; United States Dep't of Transp., FAA, Chicago, Ill., 41 FLRA 1441, 1450 (1991).

      In this case, the Arbitrator found that the Agency required the employees to take a 1-hour, non-paid, duty-free lunch period. See Award at 4. Because the employees were completely relieved from duty during the lunch period, it was a bona fide meal period as defined above. The 1-hour lunch period is therefore not compensable. As the Arbitrator ordered overtime pay for this bona fide meal period, the award is contrary to [ v56 p946 ] 5 C.F.R. § 551.411(c). [n5]  See Travis Air Force Base, 56 FLRA at 437.

      Because we uphold the Arbitrator's finding of a contract violation, but set aside the remedy, it is appropriate to remand the award to the parties for resubmission to the Arbitrator, absent settlement, to determine whether an alternative remedy is appropriate. See SSA San Juan, 56 FLRA No. 129, at 7 (finding a remedy contrary to law and remanding for consideration of an appropriate remedy); SSA, Office of Hearings and Appeals, 54 FLRA 1365, 1373 (1998).

V.     Decision

      The portion of the award ordering the Agency to provide overtime or compensatory time is set aside. That portion of the award is remanded to the parties for resubmission to the Arbitrator, absent settlement, to determine an appropriate remedy, if any, for the Agency's violation of the parties' collective bargaining agreement. The Agency's other exceptions are denied.



Footnote # 1 for 56 FLRA No. 158

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 158

   Article 18, Section a states:

The basic workweek will consist of five (5) consecutive workdays. The standard workday will consist of eight (8) hours with an additional thirty (30) minute non-paid, duty-free lunch break. However, there are shifts and posts for which the normal workday is eight (8) consecutive hours without a non-paid, duty-free lunch break. Award at 2.

Footnote # 3 for 56 FLRA No. 158

   Article 3, Section d states: "If the provisions contained in the proposed policy manual and/or program statement change or affect any personnel policies, practices, or conditions of employment, such policy issuances will be subject to negotiation with the Union, prior to issuance and implementation.[]" Award at 6-7.


Footnote # 4 for 56 FLRA No. 158

   We note, however, that our finding that the remedy is deficient does not affect the enforceability of Article 18, Section a of the parties' agreement, because that provision was negotiated pursuant to 5 U.S.C. § 7106(b)(1).


Footnote # 5 for 56 FLRA No. 158

   We note that compensatory time is a substitute for overtime pay and as such, an employee who is not eligible for overtime also is not eligible for compensatory time. See 5 U.S.C. § 5543(a)(1); see also AFGE, Local 2608, 56 FLRA No. 129, at 6 (Sept. 28, 2000) (holding that compensatory time is a substitute for over