37:0481(35)AR - - GSA and AFGE Council 236 - - 1990 FLRAdec AR - - v37 p481



[ v37 p481 ]
37:0481(35)AR
The decision of the Authority follows:


37 FLRA No. 35

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

GENERAL SERVICES ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 236

(Union)

0-AR-1601

DECISION

September 24, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Barbara W. Doering.

A grievance was filed claiming that Federal Protection Officers on a special assignment were denied overtime compensation to which they were entitled under the Fair Labor Standards Act (FLSA). The Arbitrator found that, except for shift commanders, the officers were not entitled to any overtime compensation under the FLSA. Accordingly, the Arbitrator denied the grievance as to all officers except shift commanders.

The Union filed an exception to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The General Services Administration (the Agency) filed an opposition to the exception.

We conclude that the award is deficient because it is contrary to the Fair Labor Standards Act and implementing regulations.

II. Background and Arbitrator's Award

The grievance concerns Federal Protection Officers who were assigned to a special detail guarding the Pan Am Games in 1987. The officers were housed at a motel which was approximately 3 miles from one duty site and 9 miles from the other duty site. One of the rooms at the motel was used as an equipment room where weapons and other equipment were stored while the officers were not on duty. Government vehicles were provided to transport the officers between the motel and the duty sites.

A grievance was filed and submitted to arbitration claiming that the officers, who are not exempt from the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., were denied overtime compensation to which they were entitled under the FLSA. Arbitrator's Award at 5.

The Union maintained that the officers' compensable workday started when they reported to the equipment room at the motel to sign out their weapons and other equipment before traveling to their duty sites to begin their scheduled 8-hour workday. The Union argued that the officers' compensable workday did not end until they reported to the equipment room to sign in their weapons and other equipment after traveling back to the motel from their duty sites at the completion of their scheduled workday. Arbitrator's Award at 6.

The Agency argued that the equipment room was established as a safe storage room for weapons and other equipment so that officers would not be responsible for this equipment during their off-duty time. The Agency maintained that: (1) the room was merely a convenience; (2) the officers were not instructed to report to the room for work; and (3) the officers "were simply told that the room would be 'open' a half hour before and after their shifts for their use[.]" Id. at 7. The Agency contended that signing equipment in and out and traveling to and from the motel and the duty sites were not compensable hours of work because no guard duties were performed at the motel or during travel time. Id.

Except for bargaining-unit shift commanders, the Arbitrator denied the grievance. The Arbitrator found that the officers signed their weapons in and out at the equipment room at the motel before and after their scheduled 8-hour workday. Id. at 8. However, the Arbitrator rejected the Union's argument that reporting to the equipment room started and ended the officers' compensable workday. The

Arbitrator concluded that: (1) the signing in and out of weapons at the motel was not for the purpose of working while traveling between the motel and the duty sites; (2) no work was required or performed by the officers during the travel time; and (3) the travel time was analogous to regular commuting to work. Id. at 8, 10. Except for shift commanders, she determined that because no compensable hours of work were required or performed by the officers outside their regularly scheduled workday, there was no overtime entitlement under the FLSA.

The Arbitrator sustained the grievance with respect to bargaining-unit shift commanders who were responsible for the equipment room. She found that their responsibility for the equipment room constituted work under applicable law and regulation. The Arbitrator directed the parties to identify the individuals entitled to this compensation and compute the amounts to which they are entitled.

III. Positions of the Parties

A. The Union

The Union contends that the denial of overtime compensation to all officers except shift commanders is contrary to the Fair Labor Standards Act and to implementing regulations for Federal employees set forth in 5 C.F.R. part 551. The Union claims that the signing in and out of weapons and equipment outside the regularly scheduled tour of duty occurred with the full knowledge of management. Consequently, the Union argues that the officers were in a duty status from the time they signed out the weapons and equipment until the time they signed in the weapons and equipment and are entitled to overtime compensation under the FLSA and 5 C.F.R. part 551.

B. The Agency

The Agency contends that the Arbitrator's denial of the grievance for all the officers except shift commanders is consistent with applicable law and regulation. The Agency maintains that the Arbitrator correctly ruled that the officers were not entitled to overtime compensation for the time spent signing in and out weapons and equipment and the time spent traveling to and from the motel and duty sites. The Agency argues that the officers had no authority to perform duties for the benefit of the Agency except at the two designated duty sites. The Agency also states that not all of the officers used the equipment room to store their weapons and equipment while off duty and those who did were notified that they would not receive overtime compensation for the signing in and out of equipment outside their regularly scheduled tours of duty. The Agency claims that the award is consistent with the decision of the Authority in U.S. Department of Labor, Mine Safety and Health Administration and National Council of Field Labor Locals, American Federation of Government Employees, 32 FLRA 930 (1988) (Mine Safety and Health Administration).

IV. Analysis and Conclusions

We conclude that the denial of overtime compensation for all officers other than the shift commanders is contrary to the Fair Labor Standards Act and its implementing regulations. The time spent by the grievants signing in and out weapons and other equipment and traveling between the motel equipment room and their duty sites constitutes compensable hours of work under the FLSA and regulations implementing the FLSA for Federal employees. Therefore, the Arbitrator's award is contrary to law and regulation.

An agency must compensate an employee who is not exempt from the FLSA for all hours of work in excess of 40 in a workweek at a rate "equal to one and one-half times the employee's hourly regular rate of pay." 5 C.F.R. § 551.501(a). "Hours of work" include time during which the employee is "suffered or permitted" to work. 5 C.F.R. § 551.401(a)(2). Work is "suffered or permitted" when: (1) the work is performed by an employee for the benefit of the agency, (2) the employee's supervisor knows or has reason to believe that the work is being performed, and (3) the supervisor has an opportunity to prevent the work from being performed. 5 C.F.R. § 551.102(e).

Preparatory activities are those activities employees perform prior to the commencement of their principal activities. Principal activities are the activities employees are employed to perform. Federal Personnel Manual (FPM) Supplement 990-2, Book 550, Appendix I. Concluding activities are those activities employees perform after the completion of their principal activities. Id. Preparatory and concluding activities of more than 10 minutes per workday are compensable as hours of work when they are "closely related to an employee's principal activities, and [are] indispensable to the performance of the principal activities[.]" 5 C.F.R. § 551.412(a).

The performance of work, including compensable preparatory and concluding activities, at a "designated meeting place" commences the employee's workday. FPM Letter 551-10, Table 1 n.2; see also 29 C.F.R. § 785.38. When work is performed at a designated meeting place, all time spent traveling to the job site from the designated meeting place and returning to the designated meeting place from the job site constitutes compensable hours of work. Id.

In order to resolve whether the officers, other than shift commanders, were entitled to overtime compensation, we must determine whether the signing in and out of weapons and other equipment constituted compensable preparatory and concluding activities. If the signing in and out of weapons and other equipment constituted compensable preparatory and concluding activities, the Federal Protection Officers are entitled to overtime compensation provided that: (1) the performance of those activities was suffered or permitted by the Agency, and (2) the equipment room constituted a designated meeting place for the performance of those activities. For the following reasons, we find that the Arbitrator erred by failing to determine that the officers who used the equipment room for storage of weapons and other equipment were entitled to overtime compensation.

The signing in and out of weapons and other equipment is closely related to Federal Protection Officers' principal activities as guards and is indispensable to the performance of their guard duties. See FPM Supplement 990-2, Book 550, Appendix I, Exhibit 2(b)(2)(a) (noting that the Court of Claims has held that the drawing and returning of Government-owned weapons and other equipment at designated control points by General Service Administration guards were compensable as activities closely related to their principal activities). Accordingly, we find that, for these Federal Protection Officers, the signing in and out of weapons and other equipment at a controlled equipment room constitutes compensable preparatory and concluding activities.

We also find that the performance of these compensable preparatory and concluding activities was suffered or permitted by the Agency. The Agency argues that "the officers had no authority to perform duties for the benefit of the agency other than at the two designated duty sites." Agency's Opposition at 4. However, "authorization" is not determinative of whether work is suffered or permitted. Under 5 C.F.R. § 551.102(e), work is "suffered or permitted" when: (1) the work is performed by an employee for the benefit of the agency; (2) the employee's supervisor knows or has reason to believe that the work is being performed; and (3) the supervisor has an opportunity to prevent the work from being performed.

The Agency designated a room as the equipment room to be available to the officers for the storage of weapons and other equipment and informed the officers that it was for their convenience. The room was used by officers for storing their weapons and other equipment with the knowledge of the Agency. Moreover, the Arbitrator found that the Agency facilitated the use of the equipment room by the officers by instructing the shift commanders to assure the availability of the room before and after scheduled shifts. Arbitrator's Award at 10. Based on these facts, we find that the signing in and out of weapons and other equipment by the officers constituted hours of work for the benefit of the Agency which the Agency suffered or permitted.

We further find that the equipment room constituted a "designated meeting place" within the meaning of implementing regulations to the FLSA. A "designated meeting place" is described as a place where an employee reports to receive instructions, perform other work, or pick up and carry tools. FPM Letter 551-10, Table 1. The equipment room was obtained and designated by the Agency as a controlled room for use by officers to store weapons and other equipment during off-duty hours. Use of the equipment room by officers required that they report to the equipment room to sign out their weapons and other equipment prior to beginning their shifts and that they report back to the equipment room after their shifts to sign in their weapons and other equipment. Because the equipment room constituted a "designated meeting place," the signing in and out of weapons and other equipment at the equipment room constituted the beginning and end of the workday for purposes of the officers' entitlement to overtime compensation under the FLSA. Consequently, the time reasonably spent by officers traveling between the designated meeting place and their duty sites was compensable hours of work under the FLSA.

We reach this conclusion after examining the regulatory provisions concerning "HOME TO WORK TRAVEL AS 'HOURS OF WORK' UNDER FLSA." FPM Letter 551-10, Table 1 advises that normal home-to-work travel constitutes hours of work under the FLSA in only the following four situations (emphases in original):

1. Employee drives a Government vehicle home (as a requirement of the employing agency) to respond to emergency calls immediately from his/her home.

2. Employee drives a Government vehicle home (as a requirement of the employing agency) to transport other employees home to work (or job site).

3. Employee reports at a designated meeting place and drives a vehicle (as a requirement of the employing agency) to transport other employees or equipment to a job site.

4. Employee reports at a designated meeting place (receives instructions, performs other work, or picks up and carries tools) and is transported (as a passenger) by Government vehicle to a job site.

We note that, except for the situation described in 4, which is relevant to this case, each of the other situations listed above focuses on "a requirement of the employing agency," as the basis for the travel to constitute hours of work. In view of this distinction, we find that the signing in and out of weapons and other equipment constituted the beginning and end of the workday and that travel to and from the duty site was compensable hours of work notwithstanding that, although the Agency specifically facilitated the use of the equipment room, it did not require the room to be used.

Our conclusion that the Federal Protection Officers are entitled to overtime compensation is fully consistent with decisions of the Authority and the courts. See, for example, Federal Prison System and American Federation of Government Employees, Local No. 2459, 8 FLRA 103 (1982) (Federal Prison System); International Business Investments v. U.S., 11 Cl. Ct. 588 (1987) (International Business Investments). In Federal Prison System, the Authority determined that time spent checking in and out keys and pouches at a central control room and traveling between the control room and various posts of duty constituted compensable hours of work. 8 FLRA at 104-05 & n.3; accord U.S. Department of Justice, Medical Center for Federal Prisoners and American Federation of Government Employees, Local 1612, 11 FLRA 29 (1983) (Medical Center for Federal Prisoners). In International Business Investments, contract employees providing guard services to Federal agencies reported before the beginning of their shift to a designated room where they obtained their weapons and proceeded by automobile to their assigned duty stations in time for the beginning of their shifts. After the end of their shifts, the guards returned by automobile to the designated room and turned in their weapons. The U.S. Claims Court determined that these activities outside the employees' regularly scheduled shifts were compensable hours of work under the Contract Work Hours Standards Act, 40 U.S.C. §§ 327-333. 11 Cl. Ct. at 592; accord Amos v. U.S., 13 Cl. Ct. 442 (1987). In interpreting the hours of work provisions of the Contract Work Hours Standards Act, the U.S. Claims Court applies the principles of the FLSA. See Whelan Security Co. v. U.S., 7 Cl. Ct. 496 (1985).

Mine Safety and Health Administration, 32 FLRA 930, cited by the Agency, is inapposite. In contrast to this case, the arbitrator in Mine Safety and Health Administration determined that the grievant did not report to a designated meeting place to receive instructions or pick up tools. Because the grievant did not report to a designated meeting place, the grievant's travel time as a passenger between his temporary lodging and duty station was not compensable.

The Federal Protection Officers are entitled to overtime compensation under the FLSA and implementing regulations. Accordingly, the Arbitrator's award is deficient to the extent that it denied the grievance with respect to all officers except shift commanders because the award is contrary to law and regulation. We will modify the award by vacating that portion of the award denying the grievance.

We make no determinations as to which officers are entitled to compensation or the amount of compensation to which they are entitled. Those determinations must be made in accordance with law, regulation, and this decision in a manner deemed appropriate by the parties in conjunction with implementation of the award, as modified. See Medical Center for Federal Prisoners, 11 FLRA at 30-31 & n.3; Federal Prison System, 8 FLRA at 105 n.4. Applicable provisions of regulation include the administrative procedures for the payment of preparatory and concluding activities under the FLSA. 5 C.F.R. § 551.521 (a quarter of an hour shall be the largest fraction of an hour used for crediting irregular or occasional overtime; when performed in other than the full fraction, odd minutes shall be rounded up or down to the nearest full fraction of an hour used to credit overtime); FPM Supplement 990-2, Book 550, Appendix I(a)(3)-(4) (instructions for crediting irregular or occasional overtime work and for rounding odd minutes of irregular or occasional overtime work); 48 Fed. Reg. 36804 (1983) (procedures used to credit time spent in irregular or occasional overtime work will be used to credit time spent in preparatory and concluding activities because both irregular or occasional overtime work and preparatory and concluding activities are performed outside of the employee's regularly scheduled tour of duty). Appropriate means for making these determinations would include mutual agreement of the parties, resubmission to the Arbitrator, or submission to arbitration before another arbitrator.

V. Decision