American Federation of Government Employees, Local 4044 (Union) and United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Three Rivers, Texas (Agency)


65 FLRA No. 57 
LOCAL 4044
November 24, 2010
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I.        Statement of the Case
        This matter is before the Authority on an exception to an award of Arbitrator Bruce Ponder 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 to the Union’s exception.
        The Arbitrator concluded that the Union failed to establish a prima facie case that the Agency violated the Fair Labor Standards Act (FLSA). For the reasons set forth below, we deny the Union’s exception.
II.      Background and Arbitrator’s Award
        The grievants work the day shift as Correctional Officers (COs) at the Federal Correctional Institution (FCI) at Three Rivers, Texas. In resolution of an unrelated dispute, the Union and the Agency agreed to a settlement regarding portal-to-portal pay. Award at 2. As part of the settlement, the day shift became a straight eight-hour shift, without a duty-free lunch period. Id. at 2-3. However, despite the settlement agreement, the Union and the Warden orally agreed that the COs would continue to work 8 ½ hour shifts and take thirty-minute duty-free lunch periods. Id. at 3.
        When a new Warden replaced the previous Warden, he noticed that the settlement agreement required the COs to work an eight-hour shift. The new Warden told the local Union President of the need to implement the eight-hour shift. Id. The Union President convinced him to delay implementation for one quarter, and requested another delay in implementation the next quarter. Id. The Warden implemented the eight-hour shift the following quarter. 
        The Union then filed a grievance alleging that the Agency violated the FLSA because, for a period of several years, day-shift COs worked 8 ½ hour shifts without being provided the opportunity for a thirty-minute duty-free lunch period. Opp’n at 3. The grievance was not resolved and was submitted to arbitration. Id. The issue before the Arbitrator was “[w]hether the [A]gency violated the collective bargaining agreement by requiring dayshift employees to work during thirty-minute lunch periods at FCI Three Rivers.”[1] Award at 2.
        The Arbitrator stated that the Union must prove by a preponderance of the evidence that the employees have performed work for which they were improperly compensated. Id. at 22-23 (citing Anderson v. Mount Clemens Pottery, 328 U.S. 680, 686-88 (1946)). The Arbitrator recognized that, under the FLSA, “to employ” includes “to suffer or permit to work,” and that the Union must show that the Agency had actual or constructive knowledge of the grievants’ overtime work. Id. at 23 (citing 29 U.S.C. § 203(g), 5 C.F.R. § 551.104[2]).
        After summarizing the testimony and evidence presented, the Arbitrator concluded that if, in fact, COs were working through lunch, then the Union had not provided sufficient evidence to show that the Agency was aware of the alleged problem, and, accordingly, had failed to establish a prima facie case. Id. at 28-29. In reaching this conclusion, the Arbitrator considered the following evidence:
1)       Several COs testified that they often worked without receiving a lunch break, although they did not complain to their supervisors or file any overtime requests, id. at 4-9;
2)       Some of the COs at issue attended labor management relations meetings at which lunch breaks were discussed and never raised the issue, id. at 27-28;
3)       Several Agency officials testified that they were not aware of a problem with COs not getting lunch relief, they saw COs eating lunch in the break room, and, if a problem arose, it was resolved quickly, id. at 10-18; and
4)       The Warden testified that he changed the shift hours to reduce potential Agency liability, id. at 29.
Therefore, the Arbitrator denied the Union’s grievance. Id. at 30.
III.   Positions of the Parties

  1. Union’s Exception

        The Union argues that the Arbitrator’s conclusion that the Agency had not violated the FLSA is contrary to 5 C.F.R. § 551.104. Exception at 1. According to the Union, the Arbitrator correctly cited the definition of “suffer and permit,” but incorrectly applied the definition to the facts at hand. Id. at 2. The Union claims that, in denying the grievance, the Arbitrator incorrectly found it necessary for the employees to complain about not getting lunch breaks. Id. The Union argues that it is not the employees’ responsibility to complain; rather, “it just must be proved the employee’s supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed.” Id. at 3.
        The Union contends that the evidence shows that the COs did not receive thirty-minute lunch breaks, that the Agency was “well aware” of the problem, and that the Agency had the opportunity to prevent the work from being performed. Id. at 17-18. The Union asserts that the Agency’s system for providing lunch breaks “rarely, if ever, produced the kind of duty-free 30 minute lunch break required under the FLSA[.]” Id. at 5. The Union argues that, because the Warden was aware that lunch breaks were a point of contention throughout the Agency, he must have had reason to believe that it was a problem specifically at FCI Three Rivers. Id. at 11-12. The Union also asserts that supervisors were aware of the problem because one supervisor testified that he could not guarantee that COs always received their