United States, Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Leavenworth, Kansas (Agency) and American Federation of Government Employees, Local 919, Council of Prison Locals, Council 33 (Union)

[ v59 p803 ]

59 FLRA No. 144

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
UNITED STATES PENITENTIARY
LEAVENWORTH, KANSAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 919
COUNCIL OF PRISON LOCALS,
COUNCIL 33
(Union)

0-AR-3682
(59 FLRA 593 (2003))

_____

ORDER DENYING MOTION FOR
RECONSIDERATION

April 5, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in United States Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Leavenworth, Kansas, 59 FLRA 593 (2003) (BOP). The Agency filed an opposition to the Union's motion. [n1] 

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we conclude that the Union has failed to establish that extraordinary circumstances exist, and we deny the Union's motion.

II.     Decision in BOP, 59 FLRA 593

      As relevant here, in ¶ 3(C) of the award reviewed in BOP, the Arbitrator directed the Agency to "pay each employee on a 24 hour post who did not exchange items at the beginning or end of their shift at the [Agency's] Control Center time and one-half their then regular wage rate for ten minutes for each standard day during their basic work week . . . ." Award at 45. In ¶ 3(D), the Arbitrator directed the Agency to "pay each employee who worked the first shift of a 16 hour post who did not exchange items at the beginning or end of their shift at the Control Center time and one-half their then regular wage rate for ten minutes for each standard day during their basic work week . . . ." Id. These paragraphs require the Agency to provide compensation to employees for 10 minutes for each standard day during their basic work week.

      The Agency asserted that these paragraphs were inconsistent with 5 C.F.R. § 551.412(a)(1) because they provide compensation to employees for 10 minutes for each standard day during an employee's basic work week. [n2]  The Authority determined that because the total time awarded by the Arbitrator for these employees did not exceed 10 minutes per workday, the award was contrary to 5 C.F.R. § 551.412(a)(1). The Authority also found that the court decisions relied on by the Union to support its assertion that the award of wages for a 10 minute period was not de minimis were not controlling. The Authority determined that while the court decisions involved the judicial doctrine of de minimis, the decisions did not concern the application of 5 C.F.R. § 551.412, a Government-wide regulation promulgated by the Office of Personnel Management (OPM) generally applicable to civilian employees of the Federal government.

III.      Motion for Reconsideration

      The Union asserts that the Authority "incorrectly interpreted the [10] minute time period referred to in 5 C.F.R. § 551.412[.]" Motion at 6. The Union contends that the Authority held, in reliance on 5 C.F.R. § 551.412, that a Fair Labor Standards Act violation in this case was de minimis.

      Referring to 5 C.F.R. § 551.412, the Union contends that this regulation requires "an agency to compensate employees for compensable preparatory or [ v59 p804 ] concluding activities when the agency concludes that `the total time spent in that activity is more than [10] minutes per workday.'" Id. The Union asserts that the "[A]rbitrator concluded that the equipment exchange and briefing that employees engaged in at their duty posts took between five and six minutes to perform, both at the beginning and at the end of each shift[;]" that this "would almost certainly amount to more than [10] minutes per day; in fact, it could be as much as [12] minutes per day." Id. The Union contends, therefore, that the "[A]rbitrator determined that the employees in question had actually worked more than [10] minutes per day . . . ." Id. at 2. The Union further states that the Arbitrator "ordered compensation of [10] minutes per day as a way of estimating the amount of payment due." Id. However, according to the Union, the Arbitrator "clearly determined that in all likelihood, the employees had worked more than [10] minutes per day." Id. at 7.

      Based on the above, the Union asserts that extraordinary circumstances exist in this case warranting reconsideration.

      The Agency opposes the motion for reconsideration. The Agency asserts that the Authority's decision is consistent with the OPM regulation. According to the Agency, the Union is "relying on one sentence taken from the . . . award in which the Arbitrator merely summarized testimony given at the hearing." Opposition at 6. The Agency asserts that it is "apparent, however, that the Arbitrator concluded that the employees worked [10] minutes as is evidenced by his award." Id. Therefore, the Agency contends that the Union has not established extraordinary circumstances.

IV.     Analysis and Conclusions

     The Union's Motion for Reconsideration Fails to Establish that Extraordinary Circumstances Exist within the Meaning of § 2429.17

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. The Authority has repeatedly recognized that a party seeking reconsideration of an Authority decision under § 2429.17 bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Washington, D.C., 56 FLRA 935 (2000) (IRS). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations: (1) where an intervening court decision or change in the law affected dispositive issues; (2) where evidence, information, or issues crucial to the decision had not been presented to the Authority; (3) where the Authority erred in its remedial order, process, conclusion of law, or factual finding; and (4) where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in the decision. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995). The Authority has repeatedly advised that attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. See IRS, 56 FLRA at 936.

      The Union contends that the Authority's decision is inconsistent with 5 C.F.R. § 551.412 because, contrary to the Authority's determination, the award shows that the employees in question had actually worked more than 10 minutes per day. The Union has failed to meet the heavy burden of establishing that extraordinary circumstances exist to justify reconsideration of BOP. In summarizing witnesses' testimony concerning employees' exchange of equipment and job related information, the Arbitrator did state that "[w]itnesses estimated such encounters take up to five or six minutes." Award at 9. However, he also found that a total of 10 minutes represented the additional time employees used at the start and end of their standard workday. Id. at 43. In this regard, ¶¶ 3(C) and (D) of the award make clear that the Arbitrator ultimately concluded that compensation in the form of "time and one-half their then regular wage rate for ten minutes for each standard day during their basic work week[.]" id. at 45 (emphasis added), was sufficient to account for encounters that witnesses estimated as lasting "up to five or six minutes" id. at 9. In BOP, the Union did not take issue with the Arbitrator's finding that the total amount of time to be awarded for the subject employees was 10 minutes per standard work day. See BOP, 59 FLRA at 596. In fact, the Union asserted that 10 minutes was consistent with the testimony provided at the hearing. See BOP at 596; and Union Opposition at 15-16.

      Thus, the Arbitrator determined that a total of 10 minutes per standard workday was the amount of time employees had worked. Accordingly, the Authority's determination--that because the total time awarded by the Arbitrator for these employees did not exceed 10 minutes per workday the award was contrary to 5 C.F.R. § 551.412(a)(1)-- is consistent with the regulation and the Union's arguments essentially attempt to relitigate conclusions reached by the Arbitrator and the Authority. See, e.g., United States Information Agency, Broadcasting Board of Governors, Washington, D.C., 58 FLRA 143 (2002). Therefore, the Union has not established extraor