Number 138                    December 2000

COURT DECISIONS  |   FLRA    |   MSPB

Department of Justice, Federal Bureau of Prisons, Management and Specialty Training Center, Aurora, Colorado and American Federation of Government Employees, Council of Prison Locals C33, 0-AR-3288, November 30, 2000, 56 FLRA No. 158.

Although the arbitrator found that a practice inconsistent with the contract did not modify the terms of the agreement (which the agency violated when it formalized the practice), his remedy ordering retroactive overtime or compensatory time was inappropriate because duty-free lunch periods aren't compensable under 5 CFR 551.441. FLRA affirmed the arbitrator's finding of a contract violation, but set aside the remedy and instead remanded the matter to the parties for resubmission to the arbitrator, absent settlement, to determine an appropriate remedy, if any.

Although the contract provided for a 30-minute, non-paid, duty-free lunch period, there had been an informal practice in which the agency required employees, when working as training instructors, to take a 1-hour, non-paid, duty-free lunch period to accommodate the students they instructed. When, after several years, the agency issued a memorandum formalizing this practice, the union grieved and the matter was referred to arbitration.

The arbitrator, finding that the informal practice didn't create a past practice that modified the terms of the agreement, concluded that the agency violated the agreement when it unilaterally formalized the practice. In his view, the agency was obligated to bargain with the union on changes in the work schedule. As a remedy he ordered that the agency provide retroactive overtime or compensatory time to employees who had taken 1-hour, non-paid, duty-free lunch periods while working as instructors.

The agency filed exceptions, claiming that the award was deficient because: (1) it failed to give effect to a past practice; (2) the award was inconsistent with management's right to assign work-- which includes, among other things, the right to change an employee's hours of work: and (3) the award of overtime pay was contrary to 5 CFR 551.411(c).

Past practice exception. The Authority considered the issue of whether a past practice had altered a contract term to be one of contract interpretation. It accordingly applied a deferential standard of review--i.e., it reviewed the award to determine whether it failed to draw its essence from the agreement. Finding that the agency failed to demonstrate that the arbitrator's determination (i.e., that the agency's informal practice didn't modify the written terms of the agreement) was irrational, implausible, unfounded, etc., FLRA concluded that there was no basis for finding the award deficient on this ground.

Management right exception. Because the decision to change the starting and quitting times of a shift constitutes the exercise of the right to assign work, FLRA found that the award restricted the agency's ability to change hours of work and thus affected management's section 7106(a)(2)(B) right to assign work.

Since the award affected management's right to assign work, FLRA proceeded to apply its two-prong BEP test (see Bureau of Engraving and Printing, 53 FLRA No. 21). Under the first prong, the Authority asks if the award provides a remedy for a violation of either an "applicable law" (within the meaning of section 7106(a)(2)) or a section 7106(b) contract provision. If so, it then considers, under the second prong of the BEP test, whether the remedy constitutes a reconstruction of what management would have done had it not violated the applicable law or section 7106(b) contract provision.

The Authority, noting that it has held that provisions establishing similar tours of duty are bargainable at the agency's election under section 7106(b)(1), found that the award satisfied the first prong of the BEP test. However, the award didn't satisfy the second prong because the remedy violated 5 CFR 551.411(c).

Violation of 5 CFR 551.411(c) exception. Under 5 CFR 551.411(c), duty-free meal periods are not considered hours of work, and thus can't be credited for purposes of overtime pay. Thus the 1-hour lunch period, during which employees were relieved from duty, was not compensable. And since compensatory time is a substitute for overtime pay, an employee not eligible for overtime pay would also not be eligible for compensatory time.

Because the section 7106(b)(1) contract provision was enforceable, but the remedy violated 5 CFR 551.411, the Authority remanded the award to the parties for resubmission to the arbitrator to determine whether an alternative remedy would be appropriate.

In 36 FLRA No. 65, FLRA said the following about a practice that is inconsistent with the terms of the agreement:

The fact that the negotiated agreement addressed the matter is not conclusive, if it is shown, in fact, that over a period of time the parties had engaged in a practice regarding the [matter] that differed from the contractual procedure. If this showing is made, and the practice satisfies the statutory requirements of section 7103(a)(14), it is a condition of employment that cannot be unilaterally altered. Letterkenny Army Depot, 34 FLRA 606, 610-11 (1990).

If the union, instead of grieving and invoking arbitration, had instead filed an unfair labor practice, one wonders if FLRA would have concluded that the "informal practice" of several years duration was, indeed, a "past practice" and dismissed the ULP.

Although the award affected management's right to assign work by restricting the agency's ability to change hours of work, the arbitrator was enforcing a "tours of duty" (b)(1) provision, thus satisfying the first prong of the 2-prong BEP test FLRA applies to awards affecting management rights. However, as already indicated, the award didn't satisfy the 2nd prong--i.e., it didn't reflect a reconstruction of what the agency would have done had it not violated the contract's tours of duty provision.