Office of Administrative Law Judges
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3844
Case No. AT-CA-70461
Granette Trent, Esquire W. Kirk Underwood, Esquire For the Respondent
Fetis Porter, Vice President For the Charging Party
Before: SAMUEL A. CHAITOVITZ Chief Administrative Law Judge
Statement of the Case
This case arose under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101 et seq. (the Statute).
Based upon an unfair labor practice charge filed, and
amended, by the Charging Party, American Federation of Government
Employees, Local 3844 (AFGE Local 3844/Union), a Complaint and
Notice of Hearing was issued on behalf of the General Counsel (GC)
by the Regional Director of the Atlanta Regional Office of the
Federal Labor Relations Authority (FLRA). The complaint alleges
that the Federal Bureau of Prisons (FBOP), Federal Correctional
Institution, Talladega, Alabama,(FCI Talladega/Respondent) violated
section 7116(a)(1) and (5) of the Statute by changing the past
practice of permitting employees to use government vehicles to
travel between FCI Talladega and various medical institutions and
by changing the overtime shift schedule of employees assigned to
the medical institutions, without providing AFGE Local 3844 an
opportunity to negotiate to the extent required by law about these
changes. FCI Talladega filed an answer denying it had violated the
A hearing was held in Birmingham, Alabama, at which time all
parties were afforded a full opportunity to be represented, to be
heard, to examine and cross-examine witnesses, to introduce
evidence and to argue orally. FCI Talladega and the GC of the FLRA
filed post-hearing briefs, which have been fully considered.
Based upon the entire record, including my observation of
the witnesses and their demeanor, I make the following findings of
fact, conclusions, and recommendations.
Findings of Fact
The American Federation of Government Employees, Council of
Prison Locals (AFGE) is the exclusive representative of a
nationwide consolidated unit of employees of FBOP, including
correctional officers, food service workers, and other employees at
FCI Talladega. FBOP and AFGE are parties to a nationwide collective
bargaining agreement covering employees at FCI Talladega. AFGE
Local 3844 is the agent for representing employees at FCI
B. Practices Before January 1997
Prisoners at FCI Talladega, when necessary, are placed in
hospitals located in Alabama, primarily hospitals located in
Talladega, Anniston, Birmingham, and Sylacauga. These medical
facilities range in distance from a few miles from FCI Talladega,
the hospital in Talladega, to almost 50 miles from FCI Talladega,
the hospital located in Birmingham. Prisoners placed in these
hospitals are guarded by FCI Talladega employees on an overtime
tour of duty.
Prior to January 1997, and apparently continuing to today,
employees of FCI Talladega, if they want to work overtime to guard
these prisoners, put their names on an overtime list. Officials at
FCI Talladega decide what overtime details are needed and then
contact individual employees on the overtime list to ascertain if
the employee wishes to work the requested detail. If an employee
declines, which he/she is free to do if there is no emergency,
he/she is dropped from the list and may put his/her name on the
next overtime list. Lists are apparently compiled every two
For a number of years prior to January 1997, when an
employee was to work overtime at one of the hospitals he was
permitted to check out and use an automobile owned by FCI Talladega
to travel between FCI Talladega and the hospitals in question.
Apparently many employees did use agency cars.(1) The travel times between FCI Talladega and
the hospitals vary from one hour, each way, in the case of the
hospital in Birmingham, to a few minutes, each way, in the case of
the hospital in Talladega.
Prior to February 1997, the employees driving in the agency
cars from FCI Talladega to a hospital were paid overtime for their
travel time, both ways, and their actual guard shift at the
hospital. Thus, employees driving to the hospital in Birmingham
could be paid for up to ten hours of overtime, two hours of travel
time and an eight hour shift. Of course, those driving to closer
hospitals were paid for less overtime time because of the shorter
travel time. The overtime tour of duty shifts started immediately
after the regular duty shift ended.
In June 1994 Joe L. Sivley arrived as Warden of FCI
Talladega.(2) He is assisted by an
Associate Warden, a Captain who runs all the correctional services,
eleven lieutenants who are primarily in charge of the shifts, and
the department heads in charge of mechanical, food, education, and
C. Changes in 1997 Concerning the Use of Government Cars
During the latter part of 1996 Warden Sivley began to
examine and reconsider both the use of agency vehicles policy and
the overtime policy with respect to overtime served at the
hospitals. A concern for expenditures led to the Warden's
On January 7, 1997, Captain Ronald Fulcher, on behalf of FCI
Talladega, issued a memorandum to "All Concerned" stating:
Effective immediately, government vehicleswill
no longer be available to staff for transportation
to the local hospitals when working overtime.
Overtime is voluntary and it is the responsibility
of the staff member to get to his/her duty
Based on the credited testimony, I conclude that this is the
first notification to employees and AFGE Local 3844, that the
policy concerning the use of agency cars to travel to the hospitals
to perform the overtime guard duty was being changed.
After receiving the above notice, Anthony Williams, a Union
Shop Steward, asked Assistant Warden Collins why the change was
made. Collins replied that the prior practice was against the law,
but did not, or could not, show Williams any law or regulation to
support this conclusion. Similarly, after the change in the use of
agency cars, Warden Sivley, during a conversation, told AFGE Local
3844 President Roger Colley that the warden thought that the prior
practice with respect to the use of the agency vehicles was
illegal, but he did not specify the law or regulation upon which he
In January 1997, Warden Sivley's staff discussed a possible
change in the overtime shifts directly with bargaining unit
employees, not with AFGE Local 3844 officials. Then Warden Sivley
discussed it with Fulcher. On February 6, 1997, FCI Talladega
representatives and Union representatives held a regular
labor-management meeting. Warden Sivley did not attend the
Although there is some conflict as to what exactly was said
at this meeting, I find that the minutes of the meeting most
accurately reflect what was said. These minutes state:
The use of the POV's was discussed and will
be looked into further, however; Capt.
Fulcher stated that a change in the hospital
overtime hours will be considered in an attempt
to alleviate some of the current problems. Mr.
Collins stated that there may be a possibility
for some mileage reimbursement in specific cases.
The issue was tabled until the next meeting.
With resect to this meeting I find, based on the credited
testimony of Roger Colley, Henrietta Curry and Bonita Bibb, which
was all consistent with the minutes of the meeting, that no
agreement was reached with respect to a change in overtime hours or
the use of POVs, personally owned vehicles. Fulcher seemed to have
suggested some change in overtime hours to deal with some "current
problems." Fulcher did not specify what precise changes in overtime
hours were being considered. Bibb mentioned that they were mostly
interested in the use of POVs and in being paid for travel time to
the hospitals and that the change in overtime hours was not their
concern at the moment. The parties were to get back together to
continue discussing the matters raised.
Fulcher issued a memorandum on February 12, 1997, to "All
Effective February 16, 1997, the shifts
for overtime at the local hospitals will be
M/W-1:00 A.M. to 9:00 A.M.
D/W-9:00 A.M. to 5:00 P.M.
E/W-5:00 P.M. to 1:00 A.M.
This will allow staff sufficient travel time
between the institution and hospital. This will
also provide them the opportunity to get something
Lieutenants will need to ensure hospital
assignments do not overlap with regular duty
AFGE Local 3844 President Colley sent a memorandum dated
February 16, 1997, concerning the subject "Violation of the MASTER
AGREEMENT," to Warden Sivley which stated:
It has been brought to our (Local 3844) attention
that the Agency has instituted a change in working
conditions. This change involves hours of overtime.
We have no record that indicate these changes were
presented to or negotiated by any designated Union
This letter serves as an official request to
negotiate these changes. The action taken by the
Agency is an unlawful change in personnel policies,
practices and conditions of employment for bargaining
members. Local issuances, either oral or written,
which change the above mention conditions must be
negotiated prior to implementation. This violation of
5 U.S.C. [§] 7106, 7114 and 7117 is a blatant
disregard for our Union (Local 3844) and a sense of
fair play in bargaining.
We request the practice cease and desist with the
overtime hours returned to the original times. In an
effort to resolve this issue we anticipate timely and
Warden Sivley replied to Colley by memorandum dated February
19, 1997, concerning "Alleged Violation of the Master Agreement,"
I am in receipt and have reviewed your correspondence
of February 16, 1997, wherein you allege violations of
the Master Agreement relating to a change of overtime
hours. You quote 5 U.S.C. [§] 7106, 7114 and 7117, as
the blatantly disregarded areas of the Master
Please note the Master Agreement and 5 U.S.C. are two
separate documents. 5 U.S.C. does not pertain to
scheduled or unscheduled overtime.
I have absolutely no problem to your requestin
writing, however, I have no earthly idea of what you
are talking about. Please provide specific information
pertaining to your alleged violations that I might
understand your complaint.
I await your reply.
AFGE Local 3844 interpreted this reply as a refusal to bargain and filed the subject unfair labor practice charge.
D. Adverse Impact of the Changes
The employees were adversely affected by the changes in the
use of agency cars and the overtime schedules. With respect to the
change banning the use of agency cars, the employees now must use
there own cars to drive to the hospitals, thus incurring wear and
tear on the cars and paying the cost of gas and upkeep. Those
without personal cars at their disposal have to forego working
overtime in the hospitals.
With respect to the change in overtime schedules, employees
assigned to the hospital in Birmingham receive 8 hours of overtime
pay, whereas before the change such employees received 9 or 10
hours of overtime pay. Those performing overtime in hospitals
closer to FCI Talladega, such as the hospital in Talladega now have
as much as 52 minutes of downtime, in nonpay status, between the
end of their regular time shift and the beginning of the overtime
shift, whereas before the change there was no break between the
regular shift and the overtime shift. There was no downtime in
nonpay status. This downtime did give such employees a chance to
have a meal between work shifts.
Discussion and Conclusions of Law
A. The Statute and Other Regulations
Section 7116(a)(1) and (5) of the Statute provides:
(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
* * * *
(5) to refuse to consult or negotiate in good faith with
a labor organization as required by this
Section 7106(b) of the Statute provides, in part:
(b) Nothing in this section shall preclude any agency
and any labor organization from negotiating-
(1) At the election of the agency, on the numbers,
types, and grades of employees or positions
assigned to any organizational subdivision, work
project, or tour of duty, or on the technology,
methods, and means of performing work[.]
* * * *
(3) appropriate arrangements for employees adversely
affected by the exercise of any authority under
this section by such management officials.
5 C.F.R. § 551.422, "Time Spent Traveling," provides, in
(a) Time spent traveling shall be considered hours of
(1) An employee is required to travel during regular work
(2) An employee is required to drive a vehicle or perform
other work while traveling;
(3) An employee is required to travel as a passenger on a
one-day assignment away from the official duty station; or
(4) An employee is required to travel as a passenger on
an overnight assignment away from the official duty
station during hours on nonworkdays that correspond to the
employee's regular working hours.
* * * *
(d) Except as provided in paragraph (b) of this section,
an agency may prescribe a mileage radius of not greater
than 50 miles to determine whether an employee's travel is
within or outside the limits of the employee's official
duty station for determining entitlement to overtime pay
for travel under this part. However, an agency's
definition of an employee's official duty station for
determining overtime pay for travel may not be smaller
than the definition of "official station and post of duty"
under the Federal Travel Regulation issued by the General
Services Administration (41 CFR 301-1.3(c)(4)).
5 C.F.R. § 550.112(g)(2) provides, with respect to computation
of overtime while in travel status:
(g) Time in travel status. Time in travel status away
from the official duty-station of an employee is deemed
employment only when:
(1) It is within his regularly scheduled administrative
workweek, including regular overtime work; or
(2) The Travel-
(I) Involves the performance of actual work while
(ii) Is incident to travel that involves the performance
of work while traveling;
(iii) Is carried out under such arduous and unusual
conditions that the travel is inseparable from work; or
(iv) Results from an event which could not be scheduled or
controlled administratively . . . .
* * * *
41 C.F.R. § 301-1.3(c)(4) provides:
(4) Official station and post of duty.
Designated post of duty and official station have the same
meaning. The limits of the official station will be the
corporate limits of the city or town in which the officer or
employee is stationed. If the employee is not stationed in
an incorporated city or town, the official station is the
reservation, station, or established area, or, in the case
of large reservations, the established subdivision thereof,
having definite boundaries within which the designated post
of duty is located.
B. Changes in Past Practices
The GC contends that FCI Talledaga violated section
7116(a)(1) and (5) of the Statute by changing its practices
concerning the use of agency vehicles to travel to and from FCI
Talledaga on overtime assignments at hospitals, and concerning the
overtime schedule time, without affording AFGE Local 3488 adequate
advance notice and an opportunity to bargain about the changes.
1. The Use of Agency
The record establishes that for a number of years prior
to the changes that are the subjects of this case, employees of FCI
Talledaga were permitted to, and did, use agency automobiles to
drive from FCI Talledaga, at the end of their regular shift, to
overtime shifts at hospitals where FCI Talledaga prisoners were
hospitalized, and then, at the end of the overtime shift, to drive
back to FCI Talledaga to turn in the agency car.
Providing agency cars to transport employees between work
stations is a term and condition of employment. See National
Association of Government Employees, Local R1-109 and Department of
Veterans Affairs Medical Center, Newington, Connecticut, 53
FLRA 403, 411-14 (1997)(VA Newington); National
Federation of Federal Employees, Local 2015 and U.S. Department of
the Interior, National Park Service, 41 FLRA 1158, 1168 (1991);
and National Treasury Employees Union, Chapter 153 and
Department of the Treasury, U.S. Customs Service, 21 FLRA 1116,
1121 (1986)(Customs Service). Even though the travel may
take place while the employee is not on work status, regular or
overtime, the use of an agency car to travel between work stations
is, nevertheless, a term and condition of employment.(3)See American Federation of Government
Employees, AFL-CIO, Local 3525 and United States Department of
Justice, Board of Immigration Appeals, 10 FLRA 61
(1982)(Board of Immigration Appeals); and American
Federation of Government Employees, AFL-CIO, Local 2272 and
Department of Justice, U.S. Marshals Service, District of
Columbia, 9 FLRA 1004, 1017 (1982).(4) The Authority has held that providing cars or
other transportation that merely moves employees from one work site
to another is not the "technology, methods and means of performing
work" within the meaning of section 7106(b)(1) of the Statute.
See Customs Service and Board of Immigration
Although Sivley claims he ended the practice of lending
agency cars to the employees to travel to the hospitals because
such practice was illegal or unlawful, he did not identify at the
hearing, or to the union, the law or regulation the practice
violated and the Respondent, in its brief did not identify or
specify such law or regulation. Similarly in its brief Respondent
has failed to point out any law or regulation that made it illegal
to let employees use agency cars and their brief made no such
argument. In this regard FCI Talledaga failed in meeting its burden
of proof in establishing the affirmative defense that providing
agency's vehicles is unlawful. See Department of Defense, Army
and Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis,
Virginia, 20 FLRA 248, 268 (1985) and see also, VA
Accordingly, I conclude that FCI Talledaga has failed to
establish, or for that fact even argue, that permitting employees
to use agency cars to travel between FCI Talledaga, at the end of
their regular shifts, and the hospitals to perform overtime work is
unlawful or illegal. FCI Talledaga has not argued or established
that it had any other privilege that enabled it to unilaterally
change this term and condition of employment.
This practice of using agency automobiles to travel between
FCI Talledaga and the hospitals had been a term and condition of
employment that had been in effect for a number of years before the
change that is the subject of this case. In order to change this
practice, FCI Talledaga had to give AFGE Local 3844 adequate
advance notice of the change and an opportunity to bargain over
those aspects of the changes that are negotiable. See U.S.
Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland and Social Security
Administration, Hartford District Office, Hartford,
Connecticut, 41 FLRA 1309, 1317 (1991). Such notice must be
sufficiently specific or definitive regarding the actual change
contemplated so as to adequately provide the union with a
reasonable opportunity to request bargaining. Ogden Air
Logistics Center, Hill Air Force Base, Utah and Air Logistics
Command, Wright-Patterson Air Force Base, Ohio, 41 FLRA 690,
698-99 (1991)(Ogden Air Logistics Center).
FCI Talledaga gave no advance notice to AFGE Local 3844, or
opportunity to bargain about the change. Rather the first notice
about the change in the practice of using agency cars to travel
between FCI Talledaga and the hospitals was the notice issued by
Captain Fulcher on January 7, 1997, to all employees, changed the
practice "[e]ffective immediately," it was already a fait
In light of the forgoing, I conclude that FCI Talledaga
violated section 7116(a)(1) and (5) of the Statute by changing the
practice of providing agency cars to employees so they can travel
between FCI Talledaga and hospitals for overtime shifts at the
hospitals without providing AFGE Local 3844 with adequate advance
notice and an opportunity to negotiate about the change.
2. Change in the Overtime
FCI Talledaga had, for many years, had the overtime
shifts at the hospitals run for eight hours commencing immediately
after the end of the regular time shifts, and the employees were
paid overtime for the travel time between FCI Talledaga and the
hospitals where the overtime was performed. The employees did not
travel during their regularly scheduled workweek.
Paying overtime for time spent traveling and the
starting and ending times of overtime shifts are terms and
conditions of employment. FCI Talledaga changed the overtime tours
of duty as a way to avoid paying employees overtime pay while they
travel to their overtime assignments. The complaint in this case
alleges only that the change in overtime tour of duty schedule is
an unfair labor practice.
Paying employees for travel to an overtime assignment and
the tour of duty of overtime shifts are clearly terms and
conditions of employment. See Department of the Air Force, Scott
Air Force Base, Illinois, 33 FLRA 532 (1988)(Scott AFB).
They cannot be changed without affording a labor organization
advance notice and an opportunity to negotiate about such changes,
unless such changes were required by law or regulation, or the
agency was somehow privileged to unilaterally make any such
Because the decision to end overtime pay for travel to
hospitals was not alleged in the complaint to be a violation of the
Statute, I need not decide whether this unilateral change violated
With respect to the new overtime tour of duty schedule
issued on February 12, 1997, by FCI Talladega, I conclude it is
covered by section 7106(b)(1) of the Statute, which states that an
agency may bargain, at its election, concerning tours of duty.
Thus, FCI Talladega was free to make a change in the overtime
schedules without bargaining about the substance of the change with
AFGE Local 3844. Scott AFB, 33 FLRA at 532. FCI Talladega
contends that it gave AFGE Local 3844 adequate notice of the change
in the overtime schedules. (6)
Representatives of FCI Talladega and AFGE Local 3844 met at
a labor-management meeting during which, while also talking about
the use of POVs, Fulcher "stated that a change in the hospital
overtime hours will be considered in an attempt to alleviate some
of the current problems. The issue was tabled until the next
meeting." The meeting adjourned and, before the parties had an
opportunity to meet again, Fulcher issued his February 12, 1997,
memorandum changing the overtime tours of duty at the local
hospitals, effective February 16, 1997.
AFGE Local 3844 in its memorandum of February 16, 1997,
asked Sivley to bargain about the change in overtime hours. Sivley
responded in a memorandum of February 19, 1997, and stated that he
"had no earthly idea of what you are talking about." In effect this
memorandum constituted a refusal to bargain with the Union about
the changes in the overtime schedule.
As discussed above, FCI Talladega was not obligated to
bargain about the substance of the decision to change the overtime
schedule. It nevertheless had to give the Union adequate notice and
an opportunity to bargain over the impact and implementation of the
changes in the overtime schedule, if the change had a more than
de minimis adverse impact on unit employees. See General
Services Administration, National Capital Region, Federal
Protective Service Division, Washington, DC, 52 FLRA
563, 566-68 (1996)(Federal Protective Service).
The change in the overtime schedule had substantially
adverse impact on FCI Talladega's employees. They lost the overtime
pay for travel time and those traveling to hospitals nearby the
correctional institution have substantial downtime between the end
of their regular shifts and the beginning of the overtime shifts.
They are not paid for this time and they just have to hang around
until the overtime shift begins, a waste of the employees' time.
These effects are adverse and are more than de minimis.
Accordingly, FCI Talladega was obligated to provide AFGE Local 3844
with adequate advance notice of the changes to permit the Union to
bargain about the adverse effects the change had on employees.
Although the record establishes that during January 1997,
FCI Talladega managers discussed possible changes in the overtime
shifts with employees in the bargaining unit, but not with Union
officials, the first mention of such a change in the overtime tours
of duty to AFGE Local 3488 representatives was at the February 6,
1997, labor-management meeting.
The parties were primarily discussing the change in the
use of agency supplied vehicles and the payment of mileage for use
of POVs. Fulcher's mention that "a change in hospital overtime"
would be considered to "alleviate some of the current problems" is
hardly adequate notice that FCI Talladega considered the payment of
overtime for the time spent traveling to and from the hospitals was
illegal or unlawful, that it intended to change the starting and
ending times of the overtime hospital schedule, or the precise
nature of any such schedule change. This statement did not give the
Union sufficient information to conclude a change would be made in
the overtime schedule or to identify the nature of the change. This
notice was not sufficient to permit the Union to identify the
possible adverse effects of the change, to prepare bargaining
proposals or to even ask to bargain. See Ogden Air Logistics
Center, 41 FLRA at 697-98. AFGE Local 3488 did not have enough
information to know about what it would be asking to bargain.
With no further negotiations, meetings, or
notifications, FCI Talladega issued its February 12, 1997
memorandum to "all concerned" announcing the new overtime shifts
for hospitals to be effective February 16, 1997. This notice to all
concerned, not just to union representatives, did not constitute
adequate notice. It was given only four days before the effective
date of the change. It did not afford the Union sufficient time to
formulate proposals. There was no attempt to notify the Union so as
to afford it sufficient time to analyze the change and its effects,
so that it could reasonably formulate a position. This is further
complicated by the fact that the notification went to all affected
employees, including Union officials. I conclude that such notice
was not adequate notice of the change, as required by the
Further, when AFGE Local 3844 clearly demanded in its memorandum of February 16, 1997, to bargain about the change, Warden Sivley in effect, refused to bargain. Warden Sivley's response by memorandum dated February 19, 1997, although he stated he awaited the union's reply, plainly constituted a refusal of the Union's request to bargain.
In light of the foregoing, I conclude that FCI Talledaga
violated section 7116(a)(1) and (5) of the Statute by failing to
provide AFGE Local 3844 with adequate notice and opportunity to
bargain about the impact and implementation of the change in
overtime tours of duty at the hospitals.
With respect to the change in the practice of providing
employees agency automobiles to travel to and from hospitals for
overtime, FCI Talledaga violated the Statute by failing to provide
AFGE Local 3844 with adequate advance notice and an opportunity to
bargain about the substance of the change. The appropriate remedy
for this violation is a status quo ante. See Federal Deposit
Insurance Corporation, 41 FLRA 272, 279 (1991). The GC asks for
a make whole remedy for employees denied the use of an agency car
on the basis of $0.31 per mile. I reject this request as too
conjectural and, since it does not involve backpay, such a remedy
would violate FCI Talledaga's sovereign immunity. Cf. General
Services Administration, Region 9, San Francisco, California,
52 FLRA 1107 (1997).
With respect to the change in the overtime schedule, FCI
Talledaga violated the Statute by failing to provide AFGE with
adequate advance notice and an opportunity to bargain about the
impact and implementation.
FCI Talledaga argues that whether to pay employees for
time spent traveling to overtime shifts is governed by the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq., in accordance
with regulations issued by the Office of Personnel Management in 5
C.F.R. Part 551. The travel time in question does not meet any of
the requirements set forth in 5 C.F.R. § 551.422(a) to be
considered hours of work.
In this regard the employees are not traveling during
regular working hours; the employees are not required to drive a
vehicle or perform other work while traveling; the employees are
not required to travel as a passenger on a one-day assignment away
from the normal duty stations; nor are the employees required to
travel as a passenger on an overnight assignment from the official
duty station during hours on nonworkdays that correspond to the
employees' regular working hours. Cf. Matter of Naval Undersea
Warfare Engineering Station, 68 C.G. 535 (1989 WL 237501) (July
11, 1989); and Matter of Reclamation of Drill Rig Operators,
70 C.G. 380 (1991 WL 83183)(March 29, 1991). In this regard, FCI
Talledaga provided the agency cars as a convenience and it did not
require employees to drive an agency car.
Even if the subject travel were considered travel away
from the official duty station,(8)
the travel time in question is deemed employment, for the purpose
of computing the amount of overtime worked, only if it meets the
requirements set forth in 5 C.F.R. § 550.112(g). The travel in
question meets no such requirements. In this regard, I note that
the travel to the hospital did not involve the regularly scheduled
administrative workweek, including regular overtime.(9) A "regularly scheduled administrative
workweek" includes a "period of regular overtime work, if any,
if required of each employee." 5 C.F.R. §
610.111(a)(2)(emphasis added). In the subject case the overtime was
voluntary and not required.
The GC of the FLRA, relying on paragraph 9a. of
Department of Justice Order DOJ 1500.2, which provides, in part,
that the time spent on official travel "is compensable when it is
hours of employment and is officially ordered or approved," argues
that FCI Talledaga could approve and then pay overtime for the
travel in question. This argument is rejected because, clearly, FCI
Talledaga cannot "approve" a payment that would violate
In light of the foregoing, I conclude that the then
existing practice of paying employees while they drove between FCI
Talledaga and the hospitals for overtime assignments at the
hospitals was in fact in violation of government-wide regulations
and that FCI Talledaga was required to stop that practice.
Accordingly, FCI Talledaga was not able to bargain with AFGE Local
3844 about the substance of ending this unlawful practice, and is
not able to reinstate the practice. See Federal
Protective Service, 52 FLRA at 568.
In this situation I need not use the criteria set forth
in Federal Correctional Institution, 8 FLRA 604 (1982), to
determine whether a status quo ante remedy is appropriate
because it would appear to be unlawful for FCI Talledaga to return
to its prior practice of paying overtime for the travel time to the
hospitals. See Federal Protective Service, 52FLRA at
568. Rather, the appropriate remedy is to bargain about the
impact and implementation of the change and about making any
agreement retroactive to the date of the change.
Having concluded that FCI Talledaga violated section
7116(a)(1) and (5) of the Statute with respect to the change in the
past practice of providing agency vehicles to travel to hospitals
for overtime duty and about the implementation and impact of the
change in the existing overtime tour of duty at hospitals, I
recommend the Authority adopt the following Order:
Pursuant to section 2423.41 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
the Federal Bureau of Prisons, Federal Correctional Institution,
Talledaga, Alabama, shall:
1. Cease and desist from:
(a) Unilaterally changing conditions of
employment by eliminating the option for employees represented by
the American Federation of Government Employees, Local 3844, to use
government vehicles when traveling between the Talledaga
Correctional Institution and overtime assignments at medical
facilities without first affording the Union adequate notice and an
opportunity to negotiate concerning any proposed change.
(b) Unilaterally changing conditions of
employment by changing the starting and quitting times of overtime
tours of duty at medical facilities without first affording the
Union adequate notice and an opportunity to bargain about the
impact and implementation of any such change.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute.
(a) Restore the option for employees to use
government vehicles when traveling between Talledaga Correctional
Institution and overtime assignments at medical facilities, as that
option existed prior to January 7, 1997.
(b) Notify the American Federation of Government
Employees, Local 3844, of any proposed changes in the practice of
providing agency cars to travel between the correctional
institution and overtime shifts at medical facilities.
(c) Upon request, negotiate with the Union
concerning the impact and implementation of the change in overtime
shifts for work at medical institutions made effective on February
16, 1997, and concerning making any agreement retroactive to the
date of the change.
(d) Post at the Federal Correctional Institution,
Talledaga, Alabama, where bargaining unit employees represented by
the Union are located, copies of attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Warden 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
should be taken to ensure that such Notices are not altered,
defaced, or covered by other material.
(e) Pursuant to section 2423.41(e) of the
Authority's Rules and Regulations, notify the Regional Director of
the Atlanta regional office, Federal Labor Relations Authority, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply.
Issued, Washington, DC, February 13, 1998.
SAMUEL A. CHAITOVIT
Chief Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Federal
Bureau of Prisons, Federal Correctional Institution, Talledaga,
Alabama, violated the Federal Service Labor-Management Relations
Statute, and has ordered us to post and abide by this notice:
We hereby notify bargaining unit employees that:
WE WILL NOT unilaterally change conditions of employment by
eliminating the option for employees represented by the American
Federation of Government Employees, Local 3844 to use government
vehicles when traveling between the Talledaga Correctional
Institution and overtime assignments at medical facilities without
first affording the Union adequate notice and an opportunity to
negotiate concerning any proposed change.
WE WILL NOT unilaterally change conditions of employment by
changing the starting and quitting times of overtime tours of duty
at medical facilities without first affording the American
Federation of Government Employees, Local 3844 adequate notice and
an opportunity to bargain about the impact and implementation of
any such change.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
assured by the Statute.
WE WILL restore the option for employees to use government
vehicles when traveling between Talledaga Correctional Institution
and overtime assignments at medical facilities, as that option
existed prior to January 7, 1997.
WE WILL notify American Federation of Government Employees,
Local 3844, of any proposed change in the practice of providing
agency cars to travel between the correctional institution and
overtime shifts at medical facilities.
WE WILL, upon request, negotiate with American Federation of
Government Employees, Local 3844, concerning the impact and
implementation of the change in overtime shifts for work at medical
institutions made effective on February 16, 1997, and concerning
any agreement retroactive to the date of the change.
This Notice must be posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any
If employees have any questions concerning this Notice or
compliance with its provisions, they may communicate directly with
the Regional Director, Atlanta Regional Office, Federal Labor
Relations Authority, whose address is: Marquis Two Tower, 285
Peachtree Center Avenue, Suite 701, Atlanta, GA, 30303, and whose
telephone number is: (404) 331-5212.
1. Apparently, at one time, employees were required to use agency cars, but that practice had stopped.
2. Warden Sivley testified at the hearing in this matter. I do not find him to be a reliable or credible witness. I found his testimony to be self-serving and inconsistent with surrounding circumstances. His testimony is in conflict with other credited testimony. I credit none of Warden Sivley's testimony.
3. Respondent has not contended that the provision of such agency automobiles is not a term and condition of employment.
4. This is analogous to parking arrangements for commuting employees, which have been found to be a term and condition of employment, and thus negotiable. Immigration and Naturalization Service, Los Angeles District, Los Angeles, California, 52 FLRA 103 (1996) and Department of Veterans Affairs, Veterans Administration Medical Center, Decatur, Georgia, 46 FLRA 339 (1992).
5. Respondent has not contended that the provision of agency automobiles is the technology, methods and means of performing work.
6. The GC of the FLRA argues that if this defense is rejected, then FCI Talladega will bargain about the change in the overtime schedules because it is required to do so by Executive Order 12871. There is nothing in the record to support the GC's contention. Further, I reject the argument that Executive Order 12871 requires under the Statute, that FCI Talladega bargain about the schedule change, for the reasons set forth in Department of the Air Force, 647th Air Base Group, Hanscom Air Force Base, Massachusetts, OALJ 96-53, BN-CA-41011 (1996)(except for the "inference" set forth on p.4-5), currently pending before the Authority; but see U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 858 (1997).
7. There is evidence in the record of some agreement by Sivley to negotiate in July 1997. This is well after the unilateral changes that are the subject of this case and even after the complaint herein was issued. It clearly is too late to be considered as any adequate advance notice and too late for meaningful bargaining about these changes. I note this communication was abruptly stopped by Sivley. Further, since it was apparently an attempt to settle this case, I will not consider it as any admission by Sivley that he had not previously bargained.
8. The record fails to establish that Federal Bureau of Prisons has established a mileage radius of not greater than 50 miles to determine whether an employee's travel is within the limits of the employee's official duty station, as provided in 41 C.F.R. § 551.422(d). In the absence of such a policy official duty station is defined in 5 C.F.R. § 301-1.3(c)(4).
9. GC of the FLRA refers, in his brief, to DOJ 1500.2, which he contends authorizes this overtime pay while traveling to hospitals. Again paragraph 9b(1) of this Order authorizes payment if their travel is within the employee's regularly scheduled administrative workweek, including regular overtime work. The subject travel was not during regular overtime work. It thus was not permissible.