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