49:0644(60)AR - - AFGE, Local 1482 and Navy, Marine Corps Logistics Base, Barstow, CA - - 1994 FLRAdec AR - - v49 p644
[ v49 p644 ]
The decision of the Authority follows:
49 FLRA No. 60
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
MARINE CORPS LOGISTICS BASE
March 24, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Sara Adler filed by the Union 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 Agency did not file an opposition to the Union's exception.
The Arbitrator denied a grievance concerning the Agency's failure to pay the grievant overtime for time spent, prior to the start of his scheduled shift, putting on his required safety shoes. For the following reasons, we find that the Union has not established that the award is deficient. Accordingly, we will deny the Union's exception.
II. Background and Arbitrator's Award
The grievant is required by the Agency to wear safety shoes during the performance of his duties. The parties negotiated a supplementary agreement, referred to as the 1983 Safety Sideletter (the Sideletter), regarding the use of safety shoes. The Sideletter provides, among other things, that "[e]mployees are not permitted to wear safety shoes issued by the [Agency] during non-duty time, except for travel to and from work." Award at 2.
During January 1993, the supervisor observed that the grievant was putting on his safety shoes after the beginning of his work shift. The supervisor directed the grievant to have his safety shoes on prior to the start of his shift. The grievant claimed that the supervisor's order entitled him to overtime pay.
The matter was submitted to the grievance procedure and the grievant requested that the Agency pay him "15 minutes overtime for the time [he was] caused to suffer overtime entitlement if [he was] required to come to work early and change into [his] safety shoes." Exception, Enclosure 6. The matter was unresolved and was submitted to arbitration.
The parties stipulated to the following issues:
1. Did the [Agency] require [the grievant] to come to work early and change into safety shoes?
2. If so, did the [Agency] suffer and permit overtime under Article 15, Section 1 of the [master labor agreement (MLA)]?(1)
Award at 2.
The Arbitrator found that
[w]hile it is clear that the [Agency] required [the g]rievant to wear safety shoes and equally clear that the [Agency] required [the g]rievant to have his safety shoes on at the start of his scheduled shift, there is not a shred of evidence that the [Agency] required [the g]rievant to come to work early and change into safety shoes.
Id. at 3-4. The Arbitrator noted that the Sideletter permitted employees to put on their safety shoes at home and wear them to work. The Arbitrator found that the grievant chose to change his shoes at work, rather than wear his safety shoes to work as permitted under the Sideletter. The Arbitrator determined that the grievant's choice to change at work "does not translate into an order" by the Agency that he put on his safety shoes at work. Id. The Arbitrator ruled that "[i]n the absence of such an order or requirement, there is no violation of Article 15, Section 1 of the MLA." Id. Accordingly, the Arbitrator denied the grievance.
The Union contends that the award violates law. Specifically, the Union claims the award violates 5 C.F.R. §§ 551.102(e), 551.401, and 551.521(a).(2) The Union asserts that the Arbitrator "misapplied" 5 C.F.R. § 551.102(e) when she found that an "order or requirement" was needed in order to find that the Agency was in violation of Article 15, Section 1 of the parties' MLA. Exception at 2. According to the Union, 5 C.F.R. § 551.102(e) only requires that "the supervisor know and ha[ve] an opportunity to prevent . . . work from being performed" to find that the Agency suffered or permitted that work. Id.
The Union argues that, because the supervisor required the grievant and other employees to have their safety shoes on prior to the start of their respective shifts, the supervisor knew that "the work was being performed and had an opportunity to prevent it." Id. at 3. Accordingly, the Union claims that the Agency violated section 5 C.F.R. § 551.102(e) and overtime pay is appropriate. The Union requests that the award be reversed and that the grievant be compensated for "the overtime he has and still is being 'suffered and permitted' to work." Id.
IV. Analysis and Conclusions
We will find that an arbitration award is deficient under section 7122(a) of the Statute if the award is inconsistent with law, rule, or regulation. For the following reasons, we find that the Arbitrator's award is not inconsistent with applicable regulation and we will deny the Union's exception.
The Union claims that the Arbitrator erred by not finding that the grievant is entitled to overtime for putting on his safety shoes prior to the beginning of his shift. As relevant here, under 5 C.F.R. § 551.412, "[i]f an agency reasonably determines that a preparatory . . . activity is closely related to an employee's principal activities, and is indispensable to the performance of the principal activities, . . . the agency shall credit all of the time spent in that activity . . . as hours of work." 5 C.F.R. § 551.412(a). Preparatory activities are those activities employees perform prior to the commencement of their principal activities. General Services Administration and American Federation of Government Employees, Council 236, 37 FLRA 481, 484 (1990) (GSA). Principal activities are the activities employees are employed to perform. Id. A preparatory activity that is not closely related to the performance of an employee's principal activities is considered a preliminary activity. 5 C.F.R. § 551.412(b). Time spent in a preliminary activity "is excluded from hours of work and is not compensable[.]" Id.
Where employees are not required to change clothes at the place of work, but are allowed to do so at home, they are not entitled to compensation for the time spent changing clothes because that activity is considered a noncompensable preliminary activity. See Comp. Gen. B-192831 (April 17, 1979) (unpublished), Comp. Gen. B-156407 (July 14, 1976) (unpublished), and Comp. Gen. B-182610 (February 5, 1975) (unpublished). See also Federal Personnel Manual (FPM) Supplement 990-2, Book 550, Appendix I.(3) The Arbitrator found that although the grievant was required to have his safety shoes on at the start of his shift, he was not required to change into those shoes at the work site and, under the Sideletter, was permitted to put the shoes on at home prior to coming to work. The Union does not dispute the Arbitrator's finding.
We find, therefore, that in the circumstances of this case, the Arbitrator did not err in finding that the grievant was not entitled to overtime. The time spent by the grievant in putting on his safety shoes prior to his shift constitutes a noncompensable preliminary activity which is excluded from hours of work under the FLSA and for which the grievant is not entitled to overtime. See 5 C.F.R. § 551.412(b). Moreover, we also find that the Union has not demonstrated that the grievant is entitled to overtime pay because the Agency suffered or permitted the grievant to perform work. "Hours of work" includes time during which the employee is "suffered or permitted" to work. 5 C.F.R. § 551.401(a)(2). However, as noted above, time spent in a preliminary activity, such as the one at issue in this case, is excluded from hours of work and is not compensable. Consequently, the grievant is not entitled to overtime on the basis that he was suffered or permitted by the Agency to put his shoes on at the work site prior to the start of his shift. Compare GSA, 37 FLRA at 485 (the Authority found that the performance of compensable preparatory and concluding activities was suffered or permitted by the agency and concluded that the employees involved in the case were entitled to overtime compensation).
Accordingly, we find that the Arbitrator did not err by finding that the grievant was not entitled to overtime for putting his safety shoes on prior to the beginning of his shift.
The Union's exception is denied.
5 C.F.R. § 551.102(e), entitled "Definitions," provides in relevant part:
"Suffered or permitted" work means any work performed by an employee for the benefit of an agency, whether requested or not, provided the employee's supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed.
5 C.F.R. § 551.401, entitled "Basic principles," provides in relevant part:
(a) All time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is "hours of work." Such time includes:
. . . .
(2) Time during which an employee is suffered or permitted to work[.]
5 C.F.R. § 551.412, entitled "Preparatory or concluding activities," provides:
(a)(1) If an agency reasonably determines that a preparatory or concluding activity is closely related to an employee's principal activities, and is indispensable to the performance of the principal activities, and that the total time spent in that activity is more than 10 minutes per workday, the agency shall credit all of the time spent in that activity, including the 10 minutes as hours of work.
(2) If the time spent in a preparatory or concluding activity is compensable as hours of work, the agency shall schedule the time period for the employee to perform that activity. An employee shall be credited with the actual time spent in that activity during the time period scheduled by the agency. In no case shall the time credited exceed the time scheduled by the agency. The employee shall be credited for the time spent performing preparatory or concluding activities in accordance with paragraph (b) of § 551.521 of this part.
(b) A preparatory or concluding activity that is not closely related to the performance of the principal activities is considered a preliminary or postliminary activity. Time spent in preliminary or postliminary activities is excluded from hours of work and is not compensable, even if it occurs between periods of activity that are compensable as hours of work.
5 C.F.R. § 551.521(a), entitled "Fractional hours of work," provides in relevant part:
(a) An employee shall be compensated for every minute of regular overtime work.
(If blank, the decision does not have footnotes.)
1. Article 15, Section 1 of the parties' MLA provides: "Overtime will be that work defined by law and regulation of appropriate authorities as overtime work." Award at 2.
2. The relevant portions of 5 C.F.R. Part 551, which implements the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., are set forth in the Appendix to this decision.
3. During the pendency of this case, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See FPM Sunset Document, Summary Table at 8, 10. FPM Supplement 990-2, Book 550, Appendix I has been provisionally retained. See id., Summary Table at 10.