United States, Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Terre Haute, Indiana (Agency) and American Federation of Government Employees, Local 720, Council of Prison, Locals, Council 33 (Union)

[ v58 p327 ]

58 FLRA No. 76

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
UNITED STATES PENITENTIARY
TERRE HAUTE, INDIANA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 720, COUNCIL OF PRISON
LOCALS, COUNCIL 33
(Union)

0-AR-3487

_____

DECISION

January 28, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator John Joseph D'Eletto filed by the Agency, and cross-exceptions filed by the Union, under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions, and the Agency filed an opposition to the Union's cross-exceptions.

      The Arbitrator found that the Agency violated the Fair Labor Standards Act (FLSA) by failing to compensate employees for certain pre-shift and post-shift activities and travel, and he provided backpay retroactive to the date that the grievance was filed.

      For the reasons that follow, we find that the award of compensation for activities and travel between the penitentiary's security perimeter and its control center is deficient. We are unable to determine whether the Arbitrator also awarded compensation for activities that the parties concede to be compensable, specifically, picking up equipment at the control center and traveling from the control center to the place of performance of principal activities. Accordingly, we remand this matter to the parties for resubmission to the Arbitrator, absent settlement, to clarify whether the award includes compensation for picking up equipment at the control center and walking to the place of performance of principal activities, and if it does, for a determination of the amount of such compensable work and whether the employees are entitled to liquidated damages for such work. We decline to address the Union's cross-exceptions because we find that doing so would be premature.

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency failed to compensate employees in certain departments for various pre-shift and post-shift activities. The grievance was unresolved and was submitted to arbitration, where the Arbitrator stated the issues as follows:

Is the matter timely pursuant to Article 31, Section d; and should the matter proceed to be heard on its merits? [and]
Did the Employer violate the grievants' rights, vested through Article 3, Section b and Article 18, Sections a and j, when it failed to compensate employees, at the overtime rate, for any and all time spent being processed into and out of the facility in excess of the normal work day; and, if so, what should the remedy be?[ [n1] ]

Award at 13.

      With regard to the timeliness issue, the Arbitrator found that the grievance was timely filed because it involved a continuing condition. However, the Arbitrator found that the Union failed to file the grievance within forty days after becoming aware of the violations, as required by Article 31, Section d, and he concluded that "the timeliness and scope of the grievance is limited to the filing date of [the grievance], without any application of prior retroactivity." Id. at 36. [ v58 p328 ]

      With regard to the merits, the Arbitrator found that the employees were required to engage in pre-shift and post-shift activities, including "pass[ing] through several security barriers," and "pick[ing] up and turn[ing] in or exchang[ing] a variety of equipment." Id. at 45. Taking into account the nature of the institution as a correctional facility, the Arbitrator found that these activities are "directly or closely related to each employee's princip[al] duties and are indispensable to the performance of such duties." Id. at 45. Accordingly, he concluded that the Agency violated the FLSA by failing to compensate employees from the time they entered the outermost security barrier (the security perimeter). Id. at 45.

      In resolving the parties' arguments, the Arbitrator addressed HRM § 610.1 and the Agency's Operations Memo Number 214-95 (3000) (the Operations Memo). [n2]  The Arbitrator found that the Agency failed to comply with the Operations Memo and failed to administer HRM § 610.1 at the facility. See id. at 44-45. Further, the Arbitrator noted that the Agency cited HRM § 610.1 as providing that the work day begins and ends at the control center. The Arbitrator found, however, that HRM § 610.1 (as interpreted by the Agency) is contrary to the FLSA because it fails to acknowledge that pre-shift and post-shift activities are compensable when they are closely related and indispensable to an employee's principal activities.

      The Arbitrator concluded that the Agency "failed to compensate employees, at the overtime rate, for any and all time spent being processed into and out of the facility in excess of the normal work day," which he found equals approximately twenty minutes per day. Id. at 46-47. Accordingly, for employees who continue not to be compensated for that time, he awarded backpay retroactive to the filing date of the grievance.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award is contrary to 29 U.S.C. § 254(a) (§ 254(a)), which amended the FLSA to preclude compensation to employees for time spent walking to and from their respective principal places of duty. [n3]  In addition, the Agency argues that the award is contrary to 5 C.F.R. § 551.412(a)(1) because the Agency has not determined that the pre-shift and post-shift activities are closely related to the employees' principal activities. [n4]  Further, the Agency contends that the award permits "windfall wages" because it allows twenty minutes of overtime to each employee, without an examination of each individual employee's entitlement. Exceptions at 15.

      The Agency also argues that the award fails to draw its essence from the parties' agreement. In particular, the Agency contends that the Arbitrator found that employees' shifts begin and end at the security perimeter, while HRM § 610.1 establishes that shifts begin and end at the control center. Finally, the Agency argues that the Arbitrator exceeded his authority because the award is inconsistent with HRM § 610.1 and, under the parties' agreement, the Arbitrator lacks authority to modify Agency regulations.

B.     Union's Opposition

      The Union asserts that § 254(a) does not render the employees' pre-shift and post-shift activities non-compensable because those activities are closely linked with the employees' principal duties. In this connection, the Union contends that the activities were required by the Agency, benefitted the Agency, and are indispensable to the Agency's mission. [ v58 p329 ]

C.     Union's Cross-Exceptions

      The Union asserts that the Arbitrator's limitation of the remedy retroactive to the filing date of the grievance is contrary to 29 U.S.C. § 255(a) (§ 255(a)). [n5]  In addition, the Union contends that the Arbitrator's failure to consider whether liquidated damages are warranted is contrary to 29 U.S.C. §§ 216 and 260 (§§ 216 and 260), and that the Authority may address this matter even if the Union failed to request such damages before the Arbitrator. [n6]  The Union asserts that a remand is unnecessary because the record contains sufficient factual findings for the Authority to apply a three-year statute of limitations and to award liquidated damages. In the alternative, the Union requests that these issues be remanded to the Arbitrator.

D.     Agency's Opposition

      The Agency argues that the Authority should reject the Union's assertion that the award is contrary to § 255(a) because it challenges a procedural arbitrability determination. The Agency contends that it did not act willfully and that it acted in good faith.

IV.     Analysis and Conclusions

      The parties assert that the award is contrary to law in various respects. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Agency alleges that the award is deficient because the following activities are non-compensable under § 254: (1) walking from the security perimeter to the administrator's office; (2) moving a marker on an "accountability board" in the administrator's office to indicate that the employee is inside the institution; and (3) walking from the administrator's office to the control center. [n7] 

      With regard to the first and third disputed activities, the following types of activities have been found non-compensable: monitoring a police radio during the commute to work, where employees were compensated for responding to incidents if the response lasted more than thirty minutes, see Aiken v. City of Memphis, Tenn., 190 F.3d 753, 759 (6th Cir. 1999); travel on employer-supplied buses to the work site and back where the employees were given information about their work for the day during travel but were not required to use the buses, and no work was performed before, during, or after the travel, see Vega v. Gasper, 36 F.3d 417, 425 (5th Cir. 1994) (Vega); travel from picking up identification tags (used to verify attendance and control access to the job site) to the job site, on a bus required by the employer for security reasons, where there was no evidence that employees engaged in any work during the travel, see Dolan v. Project Constr. Corp., 558 F. Supp. 1308, 1309-11 (D.Colo. 1983) (Dolan); and travel on an employer-furnished truck to the principal place of work, where the employer was not required to supply the truck, and the employees were permitted to provide their own transportation, see Tanaka v. Tom, 299 F. Supp. 732, 735 (D.Haw. 1969).

      These decisions indicate that, unless employees are required to engage in principal activities during their travel, their time spent traveling to and from the actual place of performance of their principal activities is non-compensable, even if it is on the employer's premises, and even if it occurs after the employee checks in. Because there is no evidence that the employees in this case engage in any principal activities during their travel from the security perimeter to the administrator's office, or from the administrator's office to the control center, such travel is non-compensable. [ v58 p330 ]

      The Union relies on Reich v. N.Y. City Transit Auth., 45 F.3d 646, 650 (2nd Cir. 1995) (Reich), where the court held that police officers can be compensated for the portion of their travel in which they engage in principal activities. However, as there is no evidence that the employees in the instant case engage in any principal activities while walking between the security perimeter and the administrator's office, Reich does not support an award of compensation for that travel.

      With regard to the second disputed activity-- moving a marker on the accountability board in the administrator's office -- the legislative history of § 254 specifically includes "[c]hecking in or out" as non-compensable activities. Vega, 36 F.3d at 425 (quoting S.Rep. No. 48, 80th Cong., 1st Sess. p. 47 (1947) (emphasis deleted). The employees in this case are required to move a marker on the accountability board in order to show that they are "inside" the institution. Award at 26. Thus, this activity is analogous to "checking in" with the Agency, and the legislative history of § 254 supports a conclusion that this activity is not compensable. In addition, the Arbitrator made no findings, and there is no basis for concluding, that the employees perform any other activities at the administrator's office. Accordingly, we conclude that moving a marker on the accountability board is not compensable.

      The Arbitrator's reliance on the nature of the institution as a correctional facility in awarding compensation is misplaced. In this connection, even where security reasons require controlled access to a work site, time spent traveling to and from the place of performance of principal activities is not compensable. See, e.g., Dolan, 558 F. Supp. at 1309-11 (travel not compensable despite fact that employees were required, for security reasons, to utilize employer-supplied transportation). Cf. Amos v. United States, 13 Cl. Ct. 442, 449-50 (1987) (compensating employees of correctional facility for travel to duty stations because they were required to pick up work-related items, but noting that "[i]f they did not have to obtain these items in the control room, the time spent passing through the control room and walking to their duty station clearly would not be compensable"). Thus, the fact that security reasons require controlled access to the employees' job site does not support compensation for the employees' travel.

      For the foregoing reasons, we conclude that the award of compensation for activities and travel between the security perimeter and the control center is contrary to § 254(a).

      The Arbitrator awarded twenty minutes of overtime compensation without specifying what activities that includes. It is unclear whether the award includes compensation for picking up equipment at the control center and walking to the place of performance of principal activities, which the Agency concedes is legally permissible. Thus, we are unable to determine whether the award encompasses compensation for activities that the parties concede to be compensable. Accordingly, we remand this matter to the parties for resubmission to the Arbitrator, absent settlement, to clarify whether the award provides compensation for picking up equipment at the control center and walking to the place of performance of principal activities and, if so, how much time was spent by employees in such activity. [n8] 

      Given these circumstances, we find that addressing the Union's cross-exceptions at this time would be premature. In this connection, the cross-exceptions, which address the extent of recovery and damages under the FLSA, assume that there is a valid award of overtime compensation. However, we are remanding the award to the Arbitrator on this point and, following the remand, there may be no overtime compensation award. If there is no award of overtime compensation, then the Union's cross-exceptions will be moot. In this circumstance, if the Authority were to address the cross-exceptions at this time, then the Authority would be issuing an advisory opinion, contrary to 5 C.F.R. § 2429.10. [n9]  Accordingly, we decline to address the cross-exceptions.

V.     Decision

      The award of compensation for activities and travel between the security perimeter and the control center is set aside. The remainder of the award is remanded to the parties for resubmission to the Arbitrator, absent settlement, for a clarification of whether it includes compensation for picking up equipment at the control center and walking to the place of performance of principal activities, and if it does, for a determination of the amount of such compensable work and whether the employees are entitled to liquidated damages for such work. We decline to address the Union's cross-exceptions because we find that doing so would be premature.



Footnote # 1 for 58 FLRA No. 76 - Authority's Decision

   Article 31, Section d provides, in pertinent part: "Grievances must be filed within forty (40) calendar days of the date of the alleged grievable occurrence. . . . 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." Award at 10 (emphasis omitted).

Article 3, Section b provides, in pertinent part, that in the administration of the agreement, the parties "are governed by existing and/or future laws." Id. at 7.

Article 18, Section a establishes a standard workweek of five consecutive eight-hour days, and Article 18, Section j provides, in pertinent part, that "[n]o employee will be required to stand roll calls except on duty time." Id. at 9.


Footnote # 2 for 58 FLRA No. 76 - Authority's Decision

   HRM § 610.1 establishes that employees' shifts shall be scheduled "to begin and end at the point employees pick-up and drop- off equipment (keys, radios, body alarms, work detail pouches, etc.) at the control center," and shall include "reasonable time to travel from the control center to their assigned duty post and return (at the end of the shift)." Award at 39. The Operations Memo requires the Agency's wardens to determine whether their respective institutions are in compliance with the shift beginning and ending points set forth in HRM § 610.1, and if not, to submit a plan to their regional directors indicating how they plan to bring their institutions into compliance. See Attachment 2 to Union Exceptions (Agency Exhibit 3 at 5).


Footnote # 3 for 58 FLRA No. 76 - Authority's Decision

   Section 254(a) provides, in pertinent part, that an agency shall not be liable for compensating employees for:

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities,

which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.


Footnote # 4 for 58 FLRA No. 76 - Authority's Decision

   5 C.F.R. § 551.412(a)(1) provides, in pertinent part: "If an agency reasonably determines that a preparatory or concluding activity is closely related to an employee's principal activities . . . the agency shall credit all of the time spent in that activity, . . . as hours of work."


Footnote # 5 for 58 FLRA No. 76 - Authority's Decision

   Section 255(a) provides, in pertinent part, that an action to enforce the overtime pay provisions of the FLSA "may be commenced within two years after the cause of action accrued, . . . except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued."


Footnote # 6 for 58 FLRA No. 76 - Authority's Decision

   Section 216(b) provides, in pertinent part, that an employer who violates the FLSA "shall be liable to the employee or employees affected in the amount of their unpaid . . . overtime compensation, . . . and in an additional equal amount as liquidated damages." Section 260 provides, in pertinent part, that "[i]f the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA], the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title."


Footnote # 7 for 58 FLRA No. 76 - Authority's Decision

   As discussed further infra, the Agency agrees that picking up equipment at the control center and walking from the control center to duty stations with equipment and issued keys are compensable activities. Accordingly, it is unnecessary to address whether those activities are compensable. However, we note that th