American Federation of Government Employees, Local 3882 (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Ray Brook, New York (Agency)

[ v59 p469 ]

59 FLRA No. 76

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3882
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
RAY BROOK, NEW YORK
(Agency)

0-AR-3676

_____

DECISION

December 8, 2003

_____

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

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator William A. Toomey filed by the Union under § 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.

      The grievance alleged that bargaining unit employees were entitled to overtime under the Fair Labor Standards Act (FLSA or the Act), 29 U.S.C. § 207(a), because they performed work during their scheduled 30 minute lunch break. The Arbitrator found that the grievance was not timely filed under Article 31, Section d. of the parties' collective bargaining agreement (agreement) and dismissed the grievance. [n1]  For the following reasons, we remand the award for clarification.

II.     Background and Arbitrator's Award

A.     Background

      The Union in this case represents a unit of correctional officers at a Federal prison. The officers are routinely scheduled for an eight and a half-hour work day with the half-hour intended as a non-paid, duty-free lunch period. The Union filed a grievance alleging that, because of a continuing violation by the Agency, which routinely required the officers to work through their non-paid, duty-free lunch breaks, the officers were entitled to overtime under Article 18, Section a, of the parties' agreement [n2] and the FLSA. The grievance was not resolved and was submitted to arbitration.

B.     Arbitrator's Award

      The Arbitrator stated the issues before him as follows:

Did the bargaining union employees perform compensable work time within the meaning of the Fair Labor Standards Act during their scheduled thirty minute lunch break? If so, what is the remedy to which the affected employees are entitled[?]

Award at 2.

      The Arbitrator noted that, in response to the grievance, the Agency had raised a question concerning the timeliness of the grievance under Article 31, Section d of the parties' agreement. The Arbitrator also noted that, after the above-stated issue was formulated at the arbitration hearing, the Agency again raised the question of the timeliness of the grievance. According to the Arbitrator, the Union cited the Authority's decision in NTEU, 53 FLRA 1469 (1998), for the proposition that an affected party had two years from the event(s) complained of to file a claim under the FLSA, or three years if the violation was willful. Based on NTEU, the Arbitrator ruled that "the federal law was controlling and found the grievance timely." Award at 4. Consequently, the Union presented its case on the merits of the grievance.

      In its post-hearing brief, the Agency renewed its claim that the grievance was not timely filed under the parties' agreement. Upon further review of NTEU, the Arbitrator concluded that it was distinguishable from the case before him. Specifically, the Arbitrator found that NTEU held that the FLSA, 29 U.S.C. § 255(a) (section 255(a)), provided a "substantive right" for up to two years of back pay, or three years for a willful violation. [n3]  Award at 5. He concluded that NTEU did not resolve [ v59 p470 ] the question of the timeliness of the grievance under Article 31, Section d.

      The Arbitrator found that he was bound by Article 31, Section d and that the provision contained no exceptions to its time limits. The Arbitrator also found that the grievance in the case had been filed more than forty days after the Union admitted it first became aware of the basis of the grievance. Consequently, the Arbitrator concluded that the grievance was untimely filed under Article 31, Section d and not arbitrable. The Arbitrator did not address the merits of the grievants' claims. He stated, however, that if the award was not affirmed on appeal, he would issue an award on the merits based on the record established at the arbitration hearing.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the Arbitrator erred, as a matter of law, by failing to apply the statute of limitations on FLSA claims under section 255(a). The Union asserts that "[t]he primary purpose of a statute of limitations period is to determine how long after a cause of action has accrued that a party has in which to file the action without the right being extinguished." Exceptions at 10. [n4]  The Union argues that "it is impossible to separate the date that a party is allowed to bring an action under a limitations period from the time period used to calculate backpay." Id. at 11. The Union concludes that the statute of limitations on FLSA claims under section 255(a) is a substantive right which the Arbitrator was bound to follow and that the Arbitrator's failure to adhere to section 255(a) is an error of law.

      Further, the Union claims that the Arbitrator's award ignores the clear language of Article 31, Section d. Specifically, the Union cites the portion of Article 31, Section d which provides that where a statute establishes a filing period longer than that set forth in the contractual grievance procedure, the statutory period will control.

      The Union contends that the Arbitrator exceeded his authority by addressing the timeliness issue because it was not properly before him. The Union states that, at the arbitration hearing, the parties stipulated to the issue before the Arbitrator and he accepted the stipulated issue. The Union also notes that the Arbitrator denied the Agency's timeliness claim and the issue was not further addressed by either party at the hearing. Pointing out that the Arbitrator ruled on the timeliness issue, the Union argues that he exceeded his authority by deciding an issue that was not properly before him. The Union notes that procedural arbitrability rulings can be challenged on exceeded authority grounds.

B.     Agency's Opposition

      The Agency contends that the Arbitrator's award constitutes a ruling on the procedural arbitrability of the grievance. The Agency notes that the Authority has held that procedural arbitrability awards may be challenged only on grounds that do not directly challenge the procedural arbitrability determination itself. The Agency asserts that the Union's exceptions directly challenge the Arbitrator's procedural arbitrability ruling and that, on this basis, the Union's exceptions must fail.

IV.     Analysis and Conclusions

      The Arbitrator determined that the grievance was untimely filed under Article 31, Section d of the parties' agreement. It is well-settled that an arbitrator's determination regarding the timeliness of a grievance constitutes a procedural arbitrability determination, which may be found deficient only on grounds that do not challenge the determination itself. See United States Dep't of Defense, DLA, Def. Distrib. Depot, New Cumberland, Pa., 58 FLRA 750, 753 (2003); AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). The Authority has found that the grounds on which such an award may be found deficient include arbitrator bias or a finding that the arbitrator exceeded his or her authority. The Authority has also stated that a procedural arbitrability determination may be found deficient on the ground that it is contrary to law. See AFGE, Local 933, 58 FLRA 480, 481 (2003) (Local 933).

      The issue raised by the Union's exception is whether the Arbitrator's award is contrary to law because the Arbitrator erred in failing to apply the statute of limitations on the filing of claims for overtime under the FLSA set forth in 29 U.S.C. § 255(a). Stated differently, the issue is whether, as a matter of law, 29 U.S.C. § 255(a) supersedes a conflicting contractual time limit. [n5]  [ v59 p471 ]

      In this case, as the Union points out, the last sentence of Article 31, Section d provides that where a particular statute establishes longer time limits for claims filed under that statute, those time limits, rather than the 40-day contractual limit, shall apply under the grievance procedure. On its face, that sentence would appear to incorporate 29 U.S.C. § 255(a) into the grievance procedure. The Arbitrator did not address the last sentence of Article 31, Section d. Thus, it is unclear whether his award resulted from a determination that the sentence did not incorporate 29 U.S.C. § 255(a) or whether, if it did, the contractual time limit nevertheless applied.

      In the absence of a determination by the Arbitrator on the meaning of the last sentence of Article 31, Section d, it is not clear to us whether or not the parties intended § 255(a) to apply in this case or whether they intended to establish a conflicting time limit. Consequently, we remand the award to the parties, absent settlement, for resubmission to the Arbitrator so that he can clarify the basis of his award. Specifically, the Arbitrator should clarify his understanding of the effect of the last sentence of Article 31, Section d on the grievance in this case. See AFGE, Council of Prison Locals, Local 1286, 56 FLRA 861 (2000). In this regard, the Arbitrator should determine whether the last sentence of Article 31, Section d incorporates 29 U.S.C. § 255(a) and, if it does, he should then apply 29 U.S.C. § 255(a) to the facts of this case and assess the timeliness of the grievants' claims under that provision. If the Arbitrator concludes that the claims are timely filed, he would then be required to resolve the claims on the merits.

V.     Decision

      The award is remanded to the parties for resubmission to the Arbitrator, absent settlement, for clarification of the basis of the award. [n6] 


APPENDIX

1. Article 18, Section a of the parties' agreement provides as follows:

                Article 18 - Hours Of Work

Section a. 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.
Employees on shifts which have a non-paid, duty-free lunch break will ordinarily be scheduled to take their break no earlier than three (3) hours and no later than five (5) hours after the start of the shift. It is the responsibility of the Employer to schedule the employee's break, taking into consideration any request of the employee. The Employer will notify the affected employee of the specific anticipated time that the employee will be relieved for his/her lunch break. Any employee entitled to a non-paid, duty-free lunch break who is either required to perform work or is not relieved during this period will be compensated in accordance with applicable laws, rules, and regulations. The Employer will take the affected employee's preference into consideration in determining the manner of compensation (i.e., overtime versus compensatory time or early departure), except in cases where compensation is at the election of the employee. Management will not, without good reason, fail to relieve employees for a duty-free lunch break.
There will be no restraint exercised against any employee who desires to depart the institution/facility while the employee is on a non-paid, duty-free lunch break. For the purposes of accountability, the employee leaving the institution/facility will leave word with his/her supervisor.

[ v59 p472 ] Exceptions, Attach. 3, p. 38.

2. Article 31, Section d of the parties' agreement provides, in relevant part, as follows:

                Article 31 - Grievance Procedure

. . . .
Section d. Grievances must be filed within forty (40) calendar days of the date of the alleged grievable occurrence. If needed, both parties will devote up to ten (10) days of the forty (40) to the informal resolution process. If a party becomes aware of an alleged grievable event more than forty (40) calendar days after its occurrence, the grievance must be filed within forty (40