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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 under subsection (a) of this section during the 30-day period beginning on the date the award is served on the party, the award shall be final and binding. An agency shall take the actions required by an arbitrator's final award. The award may include the payment of backpay (as provided in section 5596 of this title). /3/ See, e.g., Department of the Navy, Naval Submarine Base, New London, Connecticut, 18 FLRA No. 31(1985); Department of Defense, Department of the Navy, United States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137(1984); Veterans Administration Medical Center, Phoenix, Arizona, 15 FLRA No. 138(1984). /4/ General Services Administration, Washington, D.C., 18 FLRA No. 52(1985); United States Marshals Service, 13 FLRA 351(1983), petition for review filed sub nom. United States Marshals Service v. FLRA, Nos. 83-7973, 84-7093 (9th Cir. Dec. 30, 1983). See also United States Air Force, Air Force Logistics Command, Wright-Patternson Air Force Base, Ohio, 15 FLRA No. 27(1984), petition for review filed, No. 84-3695 (6th Cir. Aug. 22, 1984). /5/ In view of this conclusion, the Authority finds it unnecessary to determine whether the Respondent also violated section 7116(a)(5) of the Statute.