IN THE MATTER OF:
AMERICAN FEDERATION OF )
GOVERNMENT EMPLOYEES ) FMCS CASE NO.:
LOCAL NO. 0614 )
DEPARTMENT OF JUSTICE )
UNITED STATES PENITENTIARY - McCreary )
PINE KNOT, KENTUCKY )
OPINION AND AWARD
ARBITRATOR DAVID E. WILSON
FOR THE UNION: Dwayne Person
Mid-Atlantic Vice President
1900 Shoreview Dr.
Sutherland, VA 23885
FOR THE AGENCY: James A. Vogel, Jr.
Labor Management Relations Specialist
Federal Bureau of Prisons
320 First Street, N.W., Room 812
Washington, D.C. 20534
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Pursuant to the collective bargaining agreement between the American Federation of
Government Employees Union Local No. 0614 (hereinafter “the union”) and the
Department of Justice, United States Penitentiary- McCreary, Pine Knot Kentucky
(hereinafter “the agency”), the parties have designated Arbitrator David E. Wilson to hear
and decide a grievance over the scheduling of overtime at the United States Penitentiary-
McCreary. Prior to the hearing on this matter the Agency raised the threshold issue that
the grievance was not procedurally arbitrable. A bifurcated hearing was held at the
penitentiary’s training facility in Pine Knot, Kentucky on March 15, 2007 with the
threshold issue of arbitrability presented first, followed by evidence on the substantive
issue. Due to time constraints the hearing was suspended and scheduled to resume
August 22 – 23, 2007. Having fully presented the evidence on the threshold issue of
arbitrability it was agreed that the parties would file post hearing briefs on the threshold
issues and the arbitrator would issue a ruling on these issues prior to the resumption of
the hearing. Post hearing briefs were submitted by the union and the agency with both
providing arbitration and Federal Labor Relations Authority cases in support of their
respective positions. The Agency’s brief was received via e-mail on May 1, 2007 and the
union brief by U.S. Mail on May 5, 2007. I have read and reviewed the pre-hearing
submission by the agency, the post hearing briefs submitted by both parties, the
arbitration and FLRA cases cited and submitted by the union and the agency, reviewed
the transcript and documentary evidence and researched the issues presented by this case
and render my decision below.
The Federal Bureau of Prisons (hereinafter BOP or Agency) is an agency within the U.S.
Department of Justice (hereinafter DOJ). The BOP has116 different facilities scattered
throughout the United States and Puerto Rico, as well as the Central Office (Washington,
D.C.) and Regional Offices. The BOP has approximately 30,000 employees.
Bargaining unit employees are represented by the American Federation of Government
Employees and covered by a Collective Bargaining Agreement which is known as the
Master Agreement. The Master Agreement sets forth the principle that overtime is to be
equitably rotated among qualified employees and further provides that the specific
procedures for scheduling overtime are to be negotiated locally. The procedure for
scheduling overtime at USP-McCreary were negotiated locally and set forth in a
Memorandum of Understanding dated December 14, 2004.
On July 5, 2006, E. V. Smith filed a grievance regarding overtime assignments at the
United States Penitentiary (USP) McCrery. The grievance alleges that overtime
assignments from April 2005 to June 28, 2006, have violated Article 18, Section P., of
the Master Agreement. The Union also claims a violation of the “Federal Back Pay Act,
Overtime Procedures, and Memorandum of Understanding dated 2/11/06, and all
applicable laws, regulations and policies.”
On August 5, 2006, Regional Director White denied the grievance. In her response she
indicated that the grievance was rejected because the grievance was improperly filed with
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the Regional Director and should have been filed with the Warden at USP- McCreary. In
addition the Regional Director stated that the grievance failed to provide specific
information on how the overtime procedures were violated during the time period of June
5 to June 28, 2006 and failed to demonstrate how the informal resolution was violated.
On August 23, 2006, the Union gave notice to the Agency that it was invoking
The grievance document contains allegations of improperly scheduled overtime on
several dates from August 12, 2005 to June 28, 2006. Evidence and testimony at the
hearing established that with the exception of allegations concerning overtime in the
Special Housing Unit from June 5 to June 28, 2006, all of the overtime allegations
alleged were previously grieved in approximately fifteen different grievances. Many of
these earlier grievances were appealed to arbitration and then subsequently withdrawn.
The agency submitted a memorandum summarizing the numerous overtime grievances
that were discussed with the union and resolved or withdrawn (Agency Exhibit 6).
Agency Exhibit 6 contains union representative signatures acknowledging “agreed to
withdraw issue”. In addition, minutes of the Labor Management Relations Meeting
(Agency Exhibit 7) dated May 17, 2006 were submitted and indicate under item 7 –
ISSUE OVERTIME, “ISSUE RESOLVED. NO ARBITRATION.”
Following this informal resolution of the numerous allegations of improper scheduling of
overtime, the union felt that the Agency had again violated the negotiated procedure for
scheduling overtime when overtime was scheduled in the Special Housing Unit during
the time period of June 5- June 28, 2006. The union then filed the present grievance
which incorporates the previously withdrawn grievances referenced above.
The testimony established that the union presented the grievance to the Employee
Services Specialist at USP McCreary. Upon receipt of the grievance, the Employee
Services Specialist forwarded the grievance to the Regional Director.
Prior to the hearing the Agency raised the following challenges to the arbitrability of the
1) The Union violated and did not follow Article 31, Section d. of the Master
Agreement, by failing to file their grievance within forty (40) calendar days of the
date of the alleged grievable occurrence.
2) The Union violated and did not follow Article 31, grievance procedures.
Specifically the Union failed to provide specific information in their grievance
regarding what occurred at USP McCreary between June 5, 2006 and June 28,
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3) The Union violated and did not follow Article 31, of the Master Agreement by
filing a grievance regarding previously informally resolved issues, by failing to
provide the agency with written notice that they committed the same error and
how the agency failed to correct an alleged violation within five days prior to
filing a grievance for arbitration.
4) The Union violated and did not follow the provisions contained within Article 32,
Section a. and b., of the Master Agreement, as the Union is attempting to expand
the invocation and grievance.
5) The Union violated and did not follow the provisions contained within Article 31,
Section f., of the Master Agreement, when they failed to file the grievance at the
RELEVANT CONTRACT SECTIONS
ARTICLE 18 – HOURS OF WORK
Section p. Specific procedures regarding overtime assignments may be negotiated
1. when Management determines that it is necessary to pay overtime for
positions/assignments normally filled by bargaining unit employees, qualified
employees in the bargaining unit will receive first consideration for these
overtime assignments, which will be distributed and rotated equitably among
bargaining unit employees; and
2. overtime record, including sign-up lists, offers made by the Employer for
overtime, and overtime assignments, will be monitored by the Employer and the
Union to determine the effectiveness of the overtime assignment system and
ensure equitable distribution of overtime assignments to members of the unit.
Records will be retained by the Employer for two (2) years from the date of said
ARTICLE 31 – GRIEVANCE PROCEDURE
Section d. Grievances must be filed within forty (40) calendar days of the date of the
alleged 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) calendar days from the date the party filing the grievance can reasonably
be expected to have become aware of the occurrence. A grievance can be filed for
violations within the life of this contract, however, where the statutes provide for a longer
filing period, then the statutory period would control.
1. If a matter is informally resolved and either party repeats the same violation
within twelve (12) months after the informal resolution, the party engaging in the
alleged violation will have five (5) days to correct the problem. If not corrected, a
formal grievance may be filed at that time.
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Section e. If a grievance is filed after the applicable deadline, the arbitrator will decide
timeliness if raised as a threshold issue.
Section f. Formal grievances must be filed on Bureau of Prisons “Formal Grievance”
forms and must be signed by the grievant or the Union. The local Union President is
responsible for estimating the number of forms needed and informing the local HRM in a
timely manner of this number. The HRM, through the Employer’s forms ordering
procedures, will ensure that sufficient numbers of forms are ordered and provided to the
Union. Sufficient time must be allowed for the ordering and shipping of these forms.
1. When filing a grievance, the grievance will be filed with the Chief Executive
Officer of the institution/facility, if the grievance pertains to the action of an
individual for which the Chief Executive Officer of the institution/ facility has
disciplinary authority over;
2. when filing a grievance against the Chief Executive Officer of an
institution/facility, or when filing a grievance against the actions of any manager
of supervisor who is not employed at the grievant’s institution/facility, the
grievance will be filed with the appropriate Regional Director.
Section g. After a formal grievance is filed, the party receiving the grievance will have
thirty (30) calendar days to respond to the grievance.
1. if the final response is not satisfactory to the grieving party and that party desires to
proceed to arbitration, the grieving party may submit the grievance to arbitration under
Article 32 of this Agreement within thirty (30) calendar days from receipt of the final
ARTICLE 32 – ARBITRATION
Section a. In order to invoke arbitration, the party seeking to have an issue submitted to
arbitration must notify the other party in writing of this intent prior to expiration of any
applicable time limit. The notification must include a statement of the issues involved,
the alleged violations, and the requested remedy. If the parties fail to agree in joint
submission for arbitration, each party shall submit a separate submission and the
arbitrator shall determine the issue or issues to be heard. However, the issues, the
alleged violations, and the remedy requested in the written grievance may be modified
only by mutual agreement.
POSITION OF THE PARTIES
1. Timeliness: As stated in threshold issues raised by the BOP, the Agency argues that
the grievance is procedurally defective and not arbitrable for a number of reasons. Under
the labor agreement a grievance must be filed within forty (40) calendar days of the
alleged grievable event. The subject grievance was filed on July 5, 2006 and therefore
any events occurring prior to May 26, 2006 are outside of the forty day time period and
accordingly time barred.
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2. Specificity: The only allegations contained in the written grievance that are within
forty (40) calendar days of the filing date pertain to alleged overtime scheduling
violations that occurred between the dates of June 5, 2006 and June 28, 2006. However,
for this time period the grievance lacks specificity. From the Agency’s perspective, the
grievance merely states that someone worked overtime in the special housing unit and the
overtime procedures were not followed. The Master Agreement negotiated at the
national level requires that all grievances be filed on the official Bureau of Prisons
Grievance Form. Block 6 of the form states: “In what way were each of the above
violated? Be specific.” In response to the grievance the Regional Director raised this
issue in stating that the union has failed to provide the names of the specific staff
members and the specific dates that the alleged improperly scheduled overtime was
worked. “A cursory review of the overtime records did not reflect any violations;
however, a comprehensive review is not feasible as your complaint lacks specificity.”
3. Grievance improperly filed at the Regional Director level:
The agency also argues the grievance is defective as it was filed with the Regional
Director and should have been filed with the Warden.
4. Informal Resolution: The union has alleged that by violating the informal resolution
of multiple overtime grievances within twelve months of the informal resolution, the
union may now re-file these same grievances. The agency’s position is that under Article
31, Section d (1) the agency has five days to correct the problem. The union failed to
notify the agency of the alleged violation and failed to afford the agency the five days to
correct the problem prior to filing the present grievance.
The agency further argues that Article 31, Section d (1) applies when the agency repeats
the same violation within twelve months of an informal resolution. Thus, in a dispute
over scheduling of overtime, Article 31, Section d (1) only applies when the same
management official made the same type of error, affecting the same staff member under
the same circumstances. The evidence and testimony presented at the hearing established
that each instance cited in the grievance was unique. There are twelve lieutenants who
schedule overtime and a variety of circumstances creating the need for overtime. As the
testimony showed, different types of violations may have occurred and when
management was made aware of them the union was provided with a response and if in
fact an error was made the error was corrected.
5. The Union failed to properly invoke arbitration: Article 32, Section a. of the
Master Agreement mandates that the notification of intent to arbitrate include a statement
of the issues involved, the alleged violations, and the requested remedy. The Notice of
Intent to Pursue Arbitration in this case merely references the “Overtime Grievance dated
July 5th, 2006 which was filed by Steward E. V. Smith with Chief Executive Officer D.L.
Stine has not been responded to by any Management Official at U.S.P. McCreary, where
the grievance was filed. This is well beyond the thirty day limitation Management has to
respond to the grievance.”
Article 32, Section a. states that “The notification must include a statement of the issues
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involved, the alleged violation and the requested remedy.” The union has failed to meet
these requirements and the grievance is therefore not procedurally arbitrable, citing
Arbitrator Adler in American Federation of Government Employess Local Union No.
1013and Federal Bureau of Prisons FCI Yazoo City, Mississippi FMCS 01-11953. The
Agency further argues that the union has properly invoked arbitration in the past and
cannot rely on the excuse that they are not legal professionals.
POSITION OF TH E UINON
1. Timeliness: The union asserts that the agency repeatedly violated the Master
Agreement and the Memorandum of Understanding in the scheduling of overtime
and that this constitutes a continuing violation of the agreement. Under the
principal of continuing violations, each violation triggers a new 40 day period
during which the union may file a grievance. As long as one of the alleged events
falls within the forty day time limit for filing a grievance the grievance is timely
filed. Because the grievance involves an ongoing policy violation, the grievance
is timely and encompasses all past, present and future violations up to the
arbitration hearing. See Council of Prison Locals (AFL-CIO) A.F.G.E. Local 3584
and Federal Bureau of Prisons FCI Dublin, California FMCS 04-04611,
Arbitrator Gregg Lowell McCurdy (November 2005).
2. Specificity: The union has filed the grievance on the Bureau of Prisons formal
grievance form and very clearly alleged that the agency was violating the Master
Agreement and Memorandum of Understanding in the scheduling of overtime.
The union identified specific instances where the overtime procedures were
violated and provided the agency with sufficient information to investigate and
respond. Under the Master agreement the Agency is required to maintain
overtime records for two years and keep them available on the network for 270
days. The Agency has failed to maintain the records as required and should not
be rewarded for their breach of the agreement. The union representatives are
bargaining unit members, not trained legal professionals. If more detail is
required than what the union presented in this case then all union officials will
have to pursue law degrees. There is no confusion on the issue being grieved and
the agency was in no way prejudiced in responding to the grievance.
3. Grievance improperly filed at the Regional Director level: The union
presented the grievance to the Employee Services Specialist at USP McCreary
who was authorized to receive grievances on behalf of the Warden. It was the
Employee Services Specialist, not the union, who forwarded the grievance to the
Regional Director. It was the Agency that created the confusion by forwarding
the grievance to the Regional Director and the Agency should not benefit by their
failure to properly process the grievance. The Union quotes the clean hands
doctrine, that “the person who seeks equity must do equity. The doctrine closes
the door of a court of equity to one tainted with inequitableness or bad faith
relative to the matter he seeks relief.”
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4. Informal Resolution: The union argues that under Article 31, Section d. (1) if a
matter is informally resolved and the Agency repeats the same violation within
twelve months and it is not corrected within five days the Union can re-file the
grievance. The testimony and documentary evidence clearly established that on
May 17, 2006 the Union and Agency informally resolved several overtime
grievances that had been previously appealed to arbitration. Within a month of
the informal resolution, between June 5th and June 28th, 2006, the Agency
repeated the same violation. The Agency did not correct these violations within
five days and therefore the Union was entitled to file a grievance on the
previously resolved overtime grievances and all past, present and future overtime
The union agreed to withdraw the overtime grievances on the condition that the
Agency adheres to the Master Agreement and Memorandum of Understanding in
the future scheduling of overtime. The Agency again violated the agreement
within 12 months of the informal resolution and the union was then free to re-file
the previously withdrawn grievances.
5. Only timeliness may be raised as a threshold issue:
The union contends that timeliness is the only issue of procedural arbitrability the
agency is permitted to raise under the terms of the Master Agreement and 5 USC
7121. Under 5 USC 7121 – Grievance Procedures, Section (a) (1) provides in
part “any collective bargaining agreement shall provide procedures for the
settlement of grievances, including questions of arbitrability.” Article 31 –
Grievance Procedure, Section e., states: If a grievance is filed after the applicable
deadline, the arbitrator will decide timeliness if raised as a threshold issue.” The
union argues that by specifying timeliness as a threshold issue in the grievance
procedure, the party’s have waived the right to raise any other threshold issues to
Analysis and Discussion
The testimony and documentary evidence submitted at the hearing established that USP
McCreary is a relatively new high security facility in the Bureau of Prisons, commencing
operations in 2004. The Warden testified that he arrived at U.S.P. McCreary in October
of 2004 and since that time approximately thirty formal grievances have been filed. The
majority of the grievances that have been filed at McCreary involve disputes over the
scheduling of overtime.
To schedule overtime the agency and the union must adhere to the Master Agreement, the
Local Memorandum of Understanding and utilize a computer program that tracks
overtime. The goal is that opportunities to work overtime be equalized among the
correctional officers who are qualified to perform the task needed and are interested in
working overtime. Employees who desire overtime sign up on the roster and when they
are offered an overtime opportunity, regardless of whether they accept or decline, rotate
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down to the bottom of the list. The various overtime grievances filed by the union allege
a variety of offenses including hiring an officer for overtime out of sequence, hiring
employees for overtime outside of the appropriate classification (utilizing a dental
hygienist to assist with an incoming prisoner transport instead of hiring a correctional
officer for overtime), hiring officers for overtime who were not signed up on the roster,
bypassing officers for overtime who were believed to be not qualified but were in fact
qualified and bypassing officers on annual leave.
The arbitrability of the current grievance requires analyzing the effect of the withdrawal
of the prior grievances which are now incorporated in the present grievance.
Resolution also requires interpreting the interplay between the negotiated time limits for
filing a grievance, the statutory time period for filing claims under the Federal Back Pay
Act, and the effect of alleged repeat violations within twelve months of the informal
Threshold issues not limited to timeliness:
I will first address the Union’s argument that timeliness is the only issue that can be
raised as a threshold issue. The enabling statute, 5 U.S.C. 7121 provides that “any
collective bargaining agreement shall provide procedures for the settlement of
grievances, including questions of arbitrability.” Article 31, (e) of the Master Agreement
provides that the arbitrator shall determine issues of timeliness if raised as a threshold
issue. The union argues that by specifying timeliness in the contract, the agency has
waived the ability to raise any other threshold issues.
The union’s position is contrary to the overwhelming majority of both court and
arbitration precedent. “In respect to the determination of procedural arbitrability, the
Supreme Court has ruled that questions of procedural arbitrability are for arbitrators to
decide and not for the courts.” How Arbitration Works, Elkouri & Elkouri, Fifth Edition,
Page 305. In addition, both parties have submitted or cited numerous arbitration
decisions and FLRA cases wherein arbitrators have ruled on procedural arbitrability
issues similar to the issues that have been raised in this case, including specificity and
failure to follow the requirements for invoking arbitration.
Was the Grievance improperly filed at the Regional Director level?
Of the threshold objections raised by the agency to the arbitrability of the grievance, the
issue of the grievance being improperly filed can be readily dismissed. The evidence
clearly established that the grievance was filed at the facility Labor Management
Specialist’s office and it was an agency employee who determined that it should be sent
to the Regional Director for response. This procedural technicality was of the agency’s
own making and the agency was not prejudiced in any way. Thus it would be inequitable
to bar the union’s grievance as a result of the Agency’s mishandling. To do so would
open the grievance process to Machiavellian schemes whereby the Agency or Union
could benefit from misuse of the grievance process.
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The Master Agreement sets forth a clear time limit for filing a grievance which must be
respected. Time limits are important in labor relations to encourage the prompt
resolution of disputes and to prevent the parties from the burden of dealing with stale
claims. There is no evidence of lax enforcement of time limits in the processing of
grievances at the facility. The Agency raised timeliness as a threshold issue and there has
been no waiver of the Agency’s right to challenge the arbitrability of the present
grievance. The subject grievance was filed on July 5, 2006 and a simple counting back
days on the calendar leads to the conclusion that any alleged overtime scheduling
violations occurring prior to May 26, 2005 are time barred by the Master Agreement.
However, Article 31 – Grievance Procedure, Section d. includes the statement:
“A grievance can be filed for violations within the life of this contract, however,
where the statutes provide for a longer filing period, then the statutory period
In the grievance the union has alleged violations of the Federal Back Pay Act, 5 USC
5596, and in their post hearing brief included Arbitrator Greg Lowell McCurdy’s award
in A.F.G.E. Local 3584 v. Federal Bureau of Prisons, 106 LRP 43307 (FMCS 04-04611).
Arbitrator McCurdy states that 5 USC 5596 (b)(1), (4) provides for a six year statute of
limitations upon back pay violations and recoveries for “unjustified or unwarranted
personnel action(s)” resulting in a reduction of pay. It is well settled that a violation of a
CBA is “an unjustified or unwarranted personnel action”. See U.S. Department of
Defense, Department of Defense Dependents and Federal Education association, 54
FLRA 773, 785 (1998), Further, 5 C.F.R. 550.804 states that pay…..paid as back pay
under this subpart (including payments made under any grievance or arbitration decision
or any settlement) may not exceed that authorized by any applicable…collective
bargaining agreement, including any applicable statute of limitations. Arbitrator
McCurdy continues that the six year statute of limitations to seek back pay is a statutory
right that can not be waived absent a clear and unambiguous waiver. Finding no such
waiver in the Master Agreement, Arbitrator McCurdy held that claims for ongoing
(continuing) violations could be brought by the union for the six year period.
Although well reasoned, the above analysis ignores the requirement in 5 CFR 550.804(b)
that “The requirement for a timely appeal is met when:
1. An employee or an employee’s personal representative initiates an appeal or
grievance under an appeal or grievance system, including an appeal or
grievance under a grievance procedure included in a collective bargaining
2. An appropriate authority accepts that appeal, grievance, claim, complaint, or
charge as timely filed. (emphasis added).
Further, 5 CFR 550.804 (e) 1. provides that “The pay ….including payments made under
any grievance or arbitration decision…may not exceed that authorized by any
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applicable law, rule, regulation or collective bargaining agreement, including any
statute of limitations. (emphasis added)
Thus, although the statute allows for recovery of back pay for up to six years, a
condition precedent to recovery is filing a timely grievance under the collective
Arbitrator Dennis R. Nolan discussed the application of collectively bargained time limits
and the six year statute of limitations in the Federal Back Pay Act in Dept. of Air Force,
115 LA 1684 (Arb. 2001).
“The employee may only seek back pay for a period starting within 20 days of
when he filed the grievance, even though the Back Pay Act sets a maximum of
six years for a back-pay award, since the act provides that the award may be
for maximum of six years but does not guarantee six years of back pay. The
long and unbroken line of prior awards establishes that the limit is the time
period the collective-bargaining contract allows for filing a grievance, in this
case 20 days.”
In my opinion, the reference to the statute of limitations does not modify the forty day
time limit for filing a grievance once the grievant or union is aware or should have been
aware of the alleged violation. Rather the reference to the statute of limitations modifies
the preceding phrase which limits the filing of grievances to events that occur during the
life of this contract. Accordingly, a grievance could not be filed over events that
occurred during the term of an expired contract (even if within forty days of the alleged
event) unless a statute provides for a longer period. The reference to the statutory period
preserves the right to file a grievance under an expired contract.
Therefore the overtime scheduling violations alleged by the union that occurred prior to
May 26, 2006 are time barred from the grievance process unless revived by the union’s
arguments on continuing violations and breach of the informal resolution.
Continuing Violation theory:
The union argues that the failure to properly follow the overtime scheduling procedure
constitutes a continuing violation and as long as any one of the violations falls within the
forty day period, then all of the alleged violations are properly the subject of the
grievance and timely filed. A continuing violation is generally found where a policy or
procedure is put in effect and by application of that policy or procedure on a daily basis,
the alleged violation repeats and triggers a new time period under which to file a timely
grievance at each implementation of the objectionable policy.
Typical examples of continuing violations include the assignment of bargaining unit
work to non-bargaining unit personnel, portal to portal cases where there is a dispute over
pay for time spent in changing into protective equipment or other actions necessary to
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prepare for work, requiring employees to work through non-paid lunch breaks, and
disputed pay classification where each issuance of each new paycheck results in a new
For example, a grievance by a physician assistant challenging the agency's continued
refusal to allow him to wear scrubs at work was timely filed, even though it was not filed
within contractual time limits, where each day the agency denied him right to wear scrubs
was a grievable occurrence, and continued refusal to allow him to wear scrubs was
continuing violation. Federal Bureau of Prisons, 117 LA 515 (Arb. 2002).
Arbitrator C .Allen Pool discussed the concept of a continuing violation stating:
“Continuing violations (as opposed to a single, discrete transaction) give rise to
continuing grievances in that the alleged act complained of may be said to have
been repeated from day-to-day; that is, each day there has been a new occurrence.
If such is the case, the filing of a grievance is usually permitted as of the last
occurrence and is not deemed a violation of the specific time limit stated in the
agreement (the caveat, though, is that any back pay remedy ordinarily runs only
from the date of filing).” New Haven Unified School District 105 LA 668 (Arb.
The Supreme Court has addressed the concept of continuing violations in the context of
fair employment practice cases in National R.R. Passenger Corp. v Morgan, 122 S. Ct.
2061 (2002). In Morgan, the Court unanimously held that each discrete incident of
discrimination and each retaliatory adverse employment decision constitutes a separate
actionable unlawful employment practice, and such acts occur on the day that they
happen, thus triggering the applicable statute of limitations.
The exception is in hostile environment claims. Hostile work environment claims
involve a series of separate acts. However, unlike a series of discrete acts, it is the
combination of these acts together that constitute one unlawful employment practice.
The Court held that since hostile work environment claims consist of repetitive acts such
claims cannot be said to occur on any particular day. If at the time of filing the charge,
some of the component acts fall outside the limitations period, a court may consider the
entire hostile work environment for purposes of liability if at least one act falls within the
The distinguishing factor necessary to toll the time period for filing the grievance or to
toll an applicable statute of limitations is that the same violation repeats on a daily basis.
Where there are individual discrete acts alleged to violate the employee’s rights, these
acts occur on a given date and trigger the applicable time limit.
Essential to a continuing violation is finding that by policy or procedure, the same
violation of the CBA repeats on a routine basis, whether daily, weekly or monthly. If it
were established that the Agency had a policy of ignoring the Memorandum of
Understanding on overtime and the Master Agreement’s requirement that overtime
opportunities be equitably distributed, there is a possibility that the union could prevail on
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the continuing violation theory.
However, the evidence established that the Agency is making good faith efforts to
comply with the Master Agreement and Local Memorandum of Understanding (MOU)
on overtime scheduling. The undisputed testimony established that there are several
factors that affect scheduling overtime including the nature of the assignment
(Emergency Medical Escort – the staff member assigned to the inmate has first priority),
the qualification of the personnel (BPT – Basic Prisoner Transport), shift schedules,
scheduled days off, annual leave, the length of the overtime (overtime assignments of
four hours or less are “list exempt”), scheduled or unscheduled overtime (unscheduled
overtime within 2 hours of the overtime, the lieutenant is not required to follow the
“Standard” overtime list), etc.
The Warden and Captain both credibly testified that they make every effort to comply
with the letter and spirit of the Master Agreement and the MOU and if an error is made
they take corrective action. On at least one occasion an employee who was inadvertently
skipped was paid 8 hours of overtime pay. In most other situations, employees who were
inadvertently passed over were given the first opportunity for future overtime work
within their qualifications.
The alleged overtime violations enumerated in the grievance are all discrete events,
occurring at specific times and do not rise to the level of a continuing violation.
The evidence established that many of the overtime violations alleged in the grievance to
have occurred prior to May 26, 2006 were informally resolved at the Labor-Management
meeting on May 17, 2006. The union claims that between June 5 and June 28, 2006 the
Agency again violated the MOU. This repeat violation was within twelve months of the
informal resolution, giving the union the right to again grieve the previously resolved
The union witnesses testified that the grievances were withdrawn with the understanding
that if the agency again violated the contact in scheduling overtime, the union would re-
file the grievances. The Management witnesses testified that the grievances were
resolved and unconditionally withdrawn at the Labor Management meeting.
Agency Exhibit 6, a Memorandum outlining the fifteen distinct situations where the
overtime violations were claimed, was discussed with the union at the informal resolution
on May 17, 2006. Agency Exhibit 6 contains handwritten notations “agreed to w/draw
issue” along side each of the fifteen alleged instances of improper scheduling of overtime
and is signed by the then Union President. Agency Exhibit 7, which is the minutes of the
Labor Management meeting held on May 17, 2006, contains the following;
7. ISSUE: Overtime
UNION: Provide input on proposal submitted on issue.
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“ISSUE RESOLVED. NO ARBITRATION”
These minutes were distributed to the union committee.
Both Agency Exhibit 6 and Agency Exhibit 7 state that the overtime issue was resolved.
Agency Exhibit 6 is signed in at least twelve places under the phrase “agree to w/draw
issue”. Agency Exhibit 3 lists another series of alleged overtime violations and was
withdrawn on January 10, 2006 and again bears the Union President’s signature under the
words “withdraw 1-10-06.” If the withdraw of these grievances was conditional or
“without prejudice” and subject to re-filing, something to that effect should have been
annotated on the documents withdrawing the grievances.
Neither party shed much light on the intent or negotiation history of Article 31 (d) 1. The
union argues that any subsequent violation of the procedure for scheduling overtime
revives the previously resolved and withdrawn overtime grievances. Given the
complexity of the scheduling process and the varying circumstances in which overtime is
scheduled, this interpretation would lead to a nonsensical result. Despite the best efforts
of management, it is inevitable that sometime within twelve months of an informal
settlement, an overtime scheduling mistake will occur. Under the union’s interpretation,
employees whose hours were adjusted, and those who were moved up the overtime roster
and those who were paid compensation for missed overtime opportunities would again
have a viable grievance. This cannot be what the parties intended in negotiating the
language of Article 31(d) 1.
A healthy collective bargaining relationship requires an effective grievance procedure
providing for the prompt and final resolution of disputes. Under the union’s theory, a
grievance is not finally resolved until one year after informal resolution which would
result in ongoing tension and uncertainty in labor relations. Neither the Union nor the
Agency could effectively operate with this type of uncertainty.
The Agency effectively argues that Article 31 (d) 1 applies where the exact same contract
violation occurs within twelve months of an informal resolution. The present allegations
of errors in overtime scheduling constitute discrete acts, occurring in different
departments, under different scheduling lieutenants, in differing circumstances and do not
trigger Article 31(d) 1.
The Agency asserts that for the time period from June 5, 2006 to June 28, 2006 the union
only alleges that someone worked overtime in the Special Housing Unit and the overtime
procedures were not followed. The agency argues that this allegation fails to provide the
agency with the specific information required by the Master Agreement to investigate and
respond to the allegations. The Master Agreement requires the grievance be filed on the
Bureau of Prisons “Formal Grievance” form which requires specific information on what
section of the agreement was violated and specific information on how it was violated.
The union has provided persuasive authority that “A grievance is not a pleading at law.
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If on its face, it provides sufficient information for the employer to respond, it is
sufficiently specific.” Arbitrator Jack H. Calhoun, A.F.G.E. local 1242 and Federal
Bureau of Prisons. USP Atwater, California FMCS 05-57849.
I find the Agency’s argument disingenuous. The union has provided dates and the
department where the allegedly improper overtime was worked. The union has also
listed a dental hygienist who assisted with processing an incoming bus of prisoners on
June 28, 2006. The information provided by the union is sufficient for the agency to
investigate whether the overtime was properly scheduled according to the roster. They
merely have to review which employees worked overtime during this time period in the
Special Housing Unit and review the overtime roster to determine if it was properly
scheduled. By the Master Agreement the Agency is required to keep these records for
270 days and upon request provide the information to the union.
Did the Union properly invoke arbitration?
Article 32 – Arbitration of the Master Agreement requires that the party seeking
arbitration must notify the other party in writing of this intent. The notification must
include a statement of the issues involved, the alleged violations, and the requested
The union fulfilled the first part of the above requirements by notifying the Agency of
their intent to seek arbitration by letter dated August 24, 2006. Under “Statement of the
Issues” the union states “The Overtime Grievance dated July 5th, 2006 which was filed by
Steward E. V. Smith with Chief Executive Officer D. L. Stine, as of this date has not
been responded to by any Management Official of U.S.P. McCreary, where the grievance
The Agency argues that this invocation is defective in that it does not specifically list the
issues involved and the alleged violations as required by the Master Agreement. The
Agency cites Arbitrator Adler in American Federation of Government Employess Local
Union No. 1013 and Federal Bureau of Prisons FCI Yazoo City, Mississippi FMCS 01-
11953 interpreting the same clause and finding the “section contains in clear and
unequivocal language a mandatory obligation”. “It states that the notification must
contain “a statement of the issues involved and the alleged violations”.
The union persuasively argues that the Agency was in no way prejudiced by this
technical failure to list the detailed allegations on the notice of invoking arbitration. The
underlying grievance details the allegations of abuse of the overtime scheduling
procedure by the Agency. The invocation references the underlying grievance and is
incorporated by reference into the invocation and provides the Agency with sufficient
information on the issues, the alleged violation and the remedies requested. I am
persuaded that the Agency was not prejudiced and the union’s memorandum of intent to
pursue arbitration referencing the underlying grievance is sufficient to meet the
requirements of Article 32.
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1. The allegations of improper scheduling of overtime that occurred prior to May
26, 2006, or greater than 40 calendar days from the July 5th, 2006 filing of the
grievance are not timely filed and are not arbitrable.
2. The alleged overtime scheduling violations from June 5 to June 28, 2006 were
timely filed and contain sufficient information for the Agency to investigate
and defend in Arbitration and are properly before the arbitrator.
3. The union’s invocation of arbitration incorporated the underlying grievance
by reference and provided the Agency with sufficient specific detail on the
issues to be presented, the alleged violations, and the remedies sought.
4. The parties are directed to discuss resolution of the alleged improper
scheduling of overtime from June 5 to June 28, 2006.
5. If the parties are unable to resolve the grievance with respect to the overtime
scheduling that occurred from June 5 to June 28, 2006, the hearing on the
merits of these claims will continue on August 22, 2007 at 9:00 A.M. at FCI
Dated: June 1, 2007
Cincinnati, OH ___________________________________
David E. Wilson, Arbitrator
I, David E. Wilson, an attorney admitted to practice in the courts of the State of Ohio,
affirm, with full knowledge of the penalties for perjury, that the above document is my
Opinion and Award, and that I am the Arbitrator who executed the same.
June 1, 2007 _____________________________________
David E. Wilson
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