United States, Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Leavenworth, Kansas (Agency) and American Federation of Government Employees, Local 919, Council of Prison Locals, Council 33 (Union)

[ v59 p593 ]

59 FLRA No. 106

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
UNITED STATES PENITENTIARY
LEAVENWORTH, KANSAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 919
COUNCIL OF PRISON LOCALS, COUNCIL 33
(Union)

0-AR-3682

_____

DECISION

January 27, 2004

_____

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 Michael D. Gordon filed by the Agency 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. For the reasons that follow, we find that portions of the award, as discussed below, are contrary to 5 C.F.R. § 551.412 and 31 U.S.C. § 3302, respectively and, therefore, the award as it concerns these portions is set aside. We deny the remaining exceptions.

II.     Background and Arbitrator's Award

      There are 440 employees in the unit. About one-half of them are correctional officers and the rest work in administration, maintenance, service positions or UNICOR, a furniture factory operation within the prison.

      The Arbitrator found that in May 1995, American Federation of Government Employees (AFGE) filed a national grievance for all unit employees alleging violations since 1974 of the parties' collective bargaining agreement (CBA), 5 U.S.C. § 5542 and 29 U.S.C. § 201. The Arbitrator found that this grievance alleged that the Agency required employees to obtain equipment from the Control Center and be at their work sites on or prior to the beginning of their tours of duty and/or return the equipment to the Control Center after the completion of their tours.

      On November 1, 1995, the Agency issued an Operations Memorandum (1995 Operations Memo), in part to establish basic parameters for shift starting and stopping times, which was incorporated into the Human Resource Management Manual (HRM) that became effective in November 1995. In April 1996, HRM 3000.03, § 610.1 (HRM § 610) was changed. [n1]  It encouraged wardens to include local staff and union officials in the preliminary review and formulation of plans and recognized that after implementation, a local union might request impact and implementation bargaining.

      On August 14, 1996, the local Union filed the instant grievance for all unit employees alleging violations from July 10, 1995 until the matter was resolved. The grievance alleged that the Agency: required employees to be on their job locations prior to the starting of their shifts; denied overtime for the time that it took employees to travel from the front of the facility to their job location; and required employees to pick up keys prior to the start of their shifts. As a remedy, the grievance sought overtime pay for pre/post shift duties plus interest. Subsequently, the parties agreed to hold the grievance in abeyance while the national grievance was pending. [n2]  After the national grievance was settled, the parties selected the Arbitrator to decide a "Key Line-Portal-to-Portal" [ v59 p594 ] issue. Award at 18. As the parties could not agree on the issues, the Arbitrator framed the issues as follows:

A. Is the grievance, in whole or in part, untimely or otherwise non-arbitrable;
B. Did the Agency violate the Agreement in the way it calculated the required, routine beginning and ending of employee work hours for pay purposes; and, if so,
C. What is the appropriate remedy?

Id. at 2.

      Based on the evidence, the Arbitrator found that the grievance was arbitrable. [n3]  As to the merits, the Arbitrator found "common patterns characterized employee[s] arrival and departure[s] from work." Id. at 7. For example, according to the Arbitrator, employees enter a Control Center, a secure area that employees enter after walking through the front door of the main building at the beginning of their daily shifts, and pick up equipment before walking to their posts (the location of the particular work assignment); at the end of such shifts employees perform the same routine in the reverse order. The Arbitrator also found that pay is calculated based on the daily shifts shown on the assignment rosters and not on the actual arrival and departure times from the Control Center. The Arbitrator found that the calculation of pay was at the heart of the grievance because employees are, or have been, required to be at their posts during the beginning and ending time of their shifts, which meant that time at the Control Center plus time required to get to and from their work sites was outside posted hours and therefore unpaid.

      The Arbitrator found that the NSA: (1) resolved all claims until January 1, 1996, and (2) provided for negotiations to achieve compliance and to determine payments from January 1, 1996 to the date of adoption if the Agency had not implemented HRM § 610, and for employees to pursue claims after January 1, 1996, consistent with the CBA, laws, rules, and regulations. The Arbitrator, interpreting Articles 4 and 5 of the CBA, stated that he could remedy the failure to engage in good faith negotiations about HRM § 610 implementation that was mandated by the NSA.

      The Arbitrator noted that the courts, the Authority, [n4]  and arbitrators have held that non-exempt prison employees covered by the FLSA are compensated for reasonable time after picking up and before returning keys and other equipment between a Central Control room and their work stations, if more than de minimis, since so doing was integral and indispensable to their duties.

      The Arbitrator found that ¶7 of the NSA incorporates HRM § 610, including its provisions that "(1) schedules accommodate reasonable travel time to work posts for employees who obtain or return equipment at the Control Center and (2) key line waiting time prior to a shift is not work time." Id. at 30. Accordingly, the Arbitrator found that "work time for employees who obtain items at the Control Center begins when the first item is in hand and ends after the last item is returned . . . [and w]ork time for employees who do not obtain Control Center items begin and end at their posts." Id. In this regard, the Arbitrator found that in certain jobs staffed by more than one shift (commonly called "16 hour" and or "24 hour" jobs), the employee ending a shift does not leave the post until relieved by the employee beginning the shift. The Arbitrator found that during these transitions, employees exchange equipment and job information, and that witnesses indicated that such encounters take up to five or six minutes. The Arbitrator also found that employees leaving a post go through similar procedures as those arriving, only in reverse order. The Arbitrator found that this change in procedure, whereby employees were allowed to change equipment at their posts of duty, was not made by the Warden until around April 2001.

      The Arbitrator found that the "Agency err[ed] by ignoring time between obtaining Control Room items and arrival at the post and time required for any handoffs from one shift to another." Id. at 31. The Arbitrator found that the time involved was more than de minimis because "[b]y any measure, the time each day for each employee amount[ed] to more than a trifle." Id. The Arbitrator found the "absence of Agency records and percipient witnesses" was "appalling." Id. According to the Arbitrator, HRM § 610 "was not properly implemented at [the Agency] before or after the National Settlement." Id. at 42 (footnote omitted).

      Based on the record, the Arbitrator found that 10 minutes represented "travel time each way for starting and . . . ending work[]" that began and ended at the [ v59 p595 ] Control Center. Id. at 43. The Arbitrator further stated that "[i]f exact times can not be conclusively proven, presumptions disfavor the wrongdoer. . . . [T]he Agency should not gain advantage from . . . its unfathomable failure to track time or to document instructions after it became apparent the information was essential to a . . . dispute that would result in litigation . . . ." Id. The Arbitrator found that an "exact remedy tailored to particular individuals [was] extremely difficult[]" because of various problems, including the fact that: (1) the dispute lingered for years; (2) the dispute affected numerous classifications on many daily shifts; (3) starting times often differ by department and by job; and (4) even after equipment was moved to some posts, some employees on those posts still exchanged items at the Control Center. As these problems and others existed, the Arbitrator determined that a "monetary formula can not be determined simply by classification or date." Id. at 43, 44. Accordingly, the Arbitrator "remanded" the matter to the parties with "directions to apply the principles contained in the Award." Id. at 44. The Arbitrator further granted "[i]nterest . . . for wages prior to April 30, 2001, because there is no credible evidence the Agency attempted to properly pay for, or eliminate, time it knew was compensable." Id. The Arbitrator found that, thereafter, both parties shared the blame for "deadlocking resolution." Id.

      In concluding, the Arbitrator found that the Agency violated the CBA in the way it calculated the required routine beginning and ending of employee work hours for pay purposes. The Arbitrator directed the Agency to pay employees as specified in the award. [n5] 

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is contrary to law and regulation, namely, 29 U.S.C. § 254(a) of the FLSA, 5 C.F.R. § 551.412, HRM 610.1, an Agency regulation, §§ 7106(a)(1) and (a)(2)(B) of the Statute, 31 U.S.C.§§ 1301 and 3302, and 29 U.S.C.§ 216(c). [n6] 

1.     FLSA, 5 C.F.R. § 551.412, and HRM 610.1

      The Agency contends that the award grants compensation to employees who were not covered by the grievance. According to the Agency, under the FLSA, as well as HRM § 610.1, employees who picked up equipment at their posts rather than the Control Center are not entitled to additional compensation because they were not engaged in work. In support, the Agency cites Amos v. United States, 13 Cl. Ct. 442 (1987) (Amos). The Agency asserts that many employees were not required to obtain equipment at the Control Center; however, the Arbitrator awarded them overtime as if they did.

      In particular, the Agency points to ¶ 3(A) of the award and asserts that this paragraph "incorrectly requires that the Agency shall pay `each employee' who worked from January 1, 1996 to, April 30, 2001, time and one half their then regular rate for twenty minutes each day during their basic work week." Exceptions at 12. The Agency also challenges ¶ 3(E) of the award which defines "Employee" as "`all unit employees.'" Id. According to the Agency, these portions of the award as written conflict with law and the Arbitrator's own determination that "`work time for employees who do not obtain Control Center items begin and end at their posts.'" Id. The Agency asserts that the Arbitrator awarded each employee overtime compensation regardless of whether their work began and/or ended with a Control Center exchange.

      The Agency argues that ¶¶ 3(C) and (D) of the award provide compensation to employees whose work duties did not begin and/or end with a Control Center exchange. According to the Agency, under these paragraphs it has to provide, respectively, compensation to employees who were on a 24 hour post and has to pay each employee who worked the first shift of a 16 hour post who did not exchange items at the beginning or end of their shift at the Control Center.

      The Agency also argues that ¶¶ 3(C) and 3(D) are contrary to 5 C.F.R. § 551.412 because they require the Agency to provide compensation to employees for ten minutes for each standard day during an employee's basic work week. Referring to 5 C.F.R. § 551.412, the Agency contends that an award of ten minutes or less is considered to be de minimis.

2.     Section 7106(a) of the Statute

      The Agency asserts that the award affects management's right to assign work under § 7106(a)(2)(B) of the Statute. The Agency contends ¶¶ 3(C) and (D) of the award require it to administer policies regarding when employees should be at the Control Center and when arriving employees will hand off and/or communicate with departing employees. The Agency argues that this part of the award affects management's right to assign work because those paragraphs will prevent employees [ v59 p596 ] from carrying out their duties and work assignments and will prevent the Agency from determining when work assignments will occur.

      The Agency next asserts that the award affects its right to determine its internal security practices under § 7106(a)(1) of the Statute. Relying on Authority precedent, the Agency states that the determination of the location of employees and the procedures for hand off and communication with departing/arriving employees all involve management's right to determine the internal security of the prison. The Agency contends that the award affects this right because it requires management to place employees at a certain location at the start of their posts.

3.     31 U.S.C.§ 1301(a), 31 U.S.C.§ 3302, 29 U.S.C.§ 216(c)

      The Agency contends that ¶ 3(E) of the award, to the extent it requires the Agency to create an interest bearing joint account under the control of the Agency and the Union to be spent for the benefit of unit employees, is contrary to 31 U.S.C. § 1301(a). Title 31 of the United States Code, § 1301(a) provides that appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided for by law.

      The Agency states that Agency appropriations do not provide for funds that can be placed in an interest bearing joint account under the control of the Agency and the Union. The Agency also notes that under 29 U.S.C.§ 216(c), money that is unclaimed must revert back to the U.S. Treasury.

      The Agency contends that ¶ 3(E) is also contrary to 31 U.S.C. § 3302, which requires that officials, "accountable officers" as referred to by the Agency, who serve as disbursing and collection officers of the Federal Government must deposit all their collections into the U.S. Treasury, unless an exception is provided by law. [n7]  The Agency states that a Union representative does not satisfy the definition of an accountable officer.

B.     Opposition

      The Union asserts that the Arbitrator correctly applied the FLSA. in awarding compensation to employees in this case. According to the Union, the Arbitrator's factual findings establish that employees were expected to have their equipment and be at their posts at the beginning of their shifts and that it required five or six minutes for the 16 and 24 hour employees to exchange equipment and communicate about matters that transpired on the previous shift.

      The Union contends that the award of overtime is consistent with the Arbitrator's findings on the extent of uncompensated duties employees performed. The Union states that the Arbitrator determined that from 1996 to 2001, all unit employees were required to go to the Control Center at the beginning and end of their shifts to obtain and return equipment and that employees were not compensated for these activities. The Union contends that the evidence supports the Arbitrator's determination that 20 minutes per day was a reasonable estimate of the amount of time employees spent in these activities and, therefore, his award of twenty minutes per day for the time period between January 1996 and April 2001 is not deficient.

      According to the Union, the Arbitrator found that between February and April 2001, the Agency implemented changes to some posts so that not all employees were required to exchange equipment at the Control Center. The Union contends that the award distinguishes between these situations. To support this contention, the Union asserts that in ¶ 3(B) of the award, the Arbitrator provides 20 minutes of pay per day only to employees who "`continued to exchange items at the . . . Control Center [after April 30, 2001].'" Opposition at 15 (quoting Award at 45). The Union asserts that ¶¶ 3(C) and (D) provide that compensation for employees on 24 and 16 hour posts "`who did not exchange items at the beginning or end of their shift at the Control Center'" was limited to 10 minutes per day to account for the time needed to perform handoff and communication. Id. The Union asserts that the award of ten minutes per day is consistent with testimony at the hearing. Citing court cases, the Union asserts that the award is consistent with 5 C.F.R. § 551.412 because it does not award compensation for de minimis work.

      The Union contends that the award is consistent with the FLSA and precedent. The Union states that while the burden of establishing that improperly compensated work was performed rests with the employee, it is the duty of the employer to keep accurate and complete records. The Union asserts that the Arbitrator [ v59 p597 ] noted the Agency's persistent failure to make any attempt to prevent employees from working uncompensated hours or to document their time spent on pre-shift and post-shift activities.

      The Union disputes the Agency claim that certain paragraphs of the award require the Agency to administer policies regarding when employees should be at the Control Center and when arriving employees will hand off and/or communicate with departing employees in contravention of its rights to assign work and determine its internal security. The Union contends that the Agency is misreading the plain language of the award because the cited paragraphs do not require the Agency to perform any particular practices. The Union states that the Arbitrator "recognized that he lacked the authority to `set shift times, work locations, duties or otherwise mandate future prison operations and non-agreed working conditions.'" Opposition at 22. (quoting Award at 29).

      The Union asserts that the portion of the award requiring the Agency to place payments for employees who cannot be located into a joint bank account is not contrary to law. The Union contends that the laws cited by the Agency are inapposite. The Union asserts that the Agency "erroneously relies on 29 U.S.C.§ 216(c) as evidence of Congressional intent that unclaimed money should revert back to the Treasury." Id. at 24. According to the Union, this section applies to lawsuits brought by the Secretary of Labor against an employer and is not applicable to a matter involving a union grievance. Alternatively, the Union asks that if the Authority finds this portion of the award contrary to law, that it be remanded to the Arbitrator to fashion a lawful remedy.

IV.     Analysis and Conclusions

A.     Paragraphs 3(A) and (E) of the Award Are Not Contrary to the FLSA and HRM § 610.1

      The Agency asserts 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.

      Here the Agency asserts that ¶ 3(A) of the award improperly requires the Agency to pay each "employee" who worked from January 1, 1996 to April 30, 2001, time and one half of their then regular rate for twenty minutes each standard day during their basic work week, and ¶ 3(E) defines "employee" as "all unit employees." The Agency contends that these portions of the award conflict with § 254(a) of the FLSA and HRM § 610.1 because under these paragraphs, overtime is awarded to each employee regardless of whether their duties began or ended with a Control Center exchange.

      Section 254(a) of the FLSA provides that no employer will be liable under the FLSA for failing to pay overtime to an employee 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[.]

      HRM § 610.1 provides that "[e]ach institution shall have approved work schedules with shift starting and stopping times for employees who work at the institution to begin and end at the point employees pick-up and drop-off equipment . . . at the [C]ontrol [C]enter." Award at 12 n.14.

      The claim for compensation for unit employees in this case begins at the Control Center. Picking up equipment at the Control Center and walking from there to duty stations as well as returning the equipment to the Control Center are compensable activities. See, e.g., BOP, Terre Haute, 58 FLRA at 329 n.7 and Award at 42 n.43. The Arbitrator's factual findings show that from January 1, 1996 until approximately April 2001, "common patterns characterized employee[s] arrival and departure[s] from work." Award at 7. The factual findings reveal that during this time unit employees were required to go to the Control Center at the beginning of their day to pick up equipment, including keys, and then after passing through certain gates walk to the location of the particular work assignment or post, and at the end of their day follow the same procedures in reverse order, without being compensated for such activities.

      Based on the foregoing, we conclude that ¶¶ 3(A) and (E) do not award overtime for employees walking, riding, or traveling to and from the actual place of performance of the principal activity or activities. Rather, the award is based on factual findings that show unit employees were required to go to the Control Center at the beginning and end of their shifts to obtain and return equipment from 1996 to April 2001. Consistent with [ v59 p598 ] these factual findings, only those employees who picked up and dropped off equipment at the Control Center before proceeding to and returning from their posts of duty are entitled to overtime compensation in the amount of twenty minutes per day. Accordingly, the Agency has not demonstrated that the award is inconsistent with § 254(a) of the FLSA or HRM § 610.1, which requires the Agency to have work schedules with shift starting and stopping times to begin and end at the point employees pick-up and drop-off equipment at the Control Center. See Amos, 13 Cl. Ct. at 449 (compensating employees of correctional facility for travel to duty stations because they were required to pick up work-related items).

B.     Paragraphs 3(C) and (D) Are Contrary to 5 C.F.R. § 551.412

      The Agency contends that ¶¶ 3(C) and (D) are inconsistent with 5 C.F.R. § 551.412(a)(1) because they provide compensation to employees for ten minutes for each standard day during an employee's basic week.

      5 C.F.R. § 551.412(a)(1), provides, in relevant part, as follows:

(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.

      Paragraph 3(C) of the award requires the Agency to pay each employee on a 24 hour post who did not exchange items at the beginning or end of their shift at the Control Center time and one-half their then regular wage rate for ten minutes for each standard day during their basic work week. Paragraph 3(D) of the award requires the Agency to pay each employee who worked the first shift of a 16 hour post who did not exchange items at the beginning or end of their shift at the Control Center time and one-half their then regular wage rate for ten minutes for each standard day during their basic work week. These paragraphs require the Agency to provide compensation to employees for 10 minutes for each standard day during their basic work week.

      Because the total time awarded by the Arbitrator for these employees does not exceed 10 minutes per workday, the award is contrary to 5 C.F.R. § 551.412(a)(1). The Union cites court decisions, including Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984), to support its assertion that the Arbitrator's award of 10 minutes is not de minimis. However, while the cited decisions did involve the judicial doctrine of de minimis, the decisions did not concern the application of 5 C.F.R. § 551.412, a Government-wide regulation promulgated by OPM, which is applicable generally to civilian employees of the Federal government. See 5 C.F.R. §§ 551.102(a) and 551.101(b). As these cases did not involve this regulation, we find that they are not controlling. Therefore, we find the Union has not demonstrated that 5_C.F.R. §_551.412 is not applicable. [n8]  Accordingly, ¶¶ 3(C) and (D) are not consistent with 5 C.F.R. § 551.412 and are set aside.

C.     The Portion of Paragraph 3(E) of the Award Requiring Payments Due Employees Who Cannot Be Located to Be Placed in a Joint Account Is Contrary to 31 U.S.C. § 3302

      In ¶ 3(E) of the award, the Arbitrator directed that "[a]ny amount owed to an employee who, after the best reasonable efforts of both parties, can not be located, shall be placed in an interest bearing joint account under control of the Agency and Union to be spent for the benefit of the bargaining unit in a manner mutually agreeable to the Agency and Union." Award at 46. The Agency contends that this portion of the award is contrary to 31 U.S.C.§ 3302(c)(1).

      31 U.S.C.§ 3302(c)(1) provides in part that "[a] person having custody or possession of public money, including a disbursing official having public money not for current expenditure, shall deposit the money without delay in the Treasury or with a depositary designated by the Secretary of the Treasury under law." The award requires amounts owed employees who cannot be located to be placed in an interest bearing joint account under the control of the Agency and the Union to be spent for the benefit of the bargaining unit employees in a manner mutually agreeable to the Agency and Union. This part of ¶ 3(E) is contrary to 31 U.S.C.§ 3302(c)(1) because this part of ¶ 3(E) requires the Agency to set up an interest bearing joint account that would not be solely under the control of a Federal disbursing official and would not be returned to the U. S. Treasury.

      Because the award would require the Agency to pay money due in a manner that is not authorized by law, the award is contrary to 31 U.S.C.§ 3302(c)(1) and [ v59 p599 ] this portion of it is set aside. [n9]  See also INS, Los Angeles Dist., Los Angeles, Cal., 52 FLRA 103, 104-05 (1996) (citations omitted) (under the doctrine of sovereign immunity remedy imposed must be supported by statutory authority). As to the Union's request that this portion of the award be remanded to the Arbitrator "to fashion a remedy that is consistent with law[,]" we find that as this portion of the remedy is contrary to law and, as other remedies remain, there is no basis in Authority precedent for remanding this part of the award. Accordingly, we deny the Union's request.

V.     Decision

      Paragraphs 3(C) and (D) of the award are contrary to 5 C.F.R. § 551.412 and are set aside. The portion of ¶ 3(E) of the award requiring payments due employees who cannot be located to be placed in a joint account is contrary to 31 U.S.C. § 3302 and is set aside. We deny the Agency's remaining exceptions.


APPENDIX

29 U.S.C.§ 254 Portal-to-Portal Pay

(a)     Activities not compensable
Except as provided in subsection (b) of this section, no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended [29 U.S.C.A. § 201 et. seq.], the Walsh-Healey Act [41 U.S.C.A. § 35 et. seq.], or the Bacon-Davis Act [40 U.S.C.A. § 276a et. seq.], on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947--
(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. For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principle activities if the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.
(b)     Compensability by contract or custom
Notwithstanding the provisions of subsection (a) of this section which relieve an employer from liability and punishment with respect to any activity, the employer shall not be so relieved if such activity is compensable by either --
(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or
(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective bargaining representative and his employer.

5 C.F.R. § 412 provides in relevant part as follows:

§ 551.412 Preparatory or concluding activities.
(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.
. . . .
(b) A preparatory or concluding activity that is not closely related to the performance of the principal activities is considered a preliminary [ v59 p600 ] 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.

HRM 3000.03 § 610.1

3. Criteria. Each institution shall have approved work schedules with shift starting and stopping times for employees who work at the institution 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. Therefore, employees who pick-up equipment at the control center, shall have their shifts scheduled to include reasonable time to travel from the control center to their assigned duty post and return (at the end of the shift). If an employee arrives at the key line in a reasonable time to get equipment by the beginning of the shift, this employee is not to be considered late.
. . . .
6. Scheduling Considerations.
. . . .
c. Although waiting time in key lines prior to the beginning of a shift is not "work time", such waiting time is to be reduced to a minimum to assist a smooth transition from shift-to-shift and more timely and predictable movement from the control center to the post. One way to accomplish this is through staggered shift starting and stopping times for day watch positions and placing additional personnel in the control center during busy shift changes. Another option is to assign equipment and keys to posts. . . .

The Arbitrator's Award, in part, provides:

3.     The Agency shall:

(A)     Pay each employee who worked January 1, 1996, to April 30, 2001, time and one half their then regular wage rate for twenty minutes each standard day during their basic work week.
(B)     After April 30, 2001, pay each employee (including employees working 16 and 24 hour posts) who continued to exchange items at the beginning and also at the end of their shift at the Control Center time and one-half their then regular wage rate for twenty minutes for each standard day during their basic work week until (1) it was/is no longer required for them to exchange equipment at the Control Center or (2) the Agency states in writing and administers a policy that such employees only need be at the Control Center, and not at their posts, at the scheduled beginning and end of their regular work hours.
(C)     After April 30, 2001, pay each employee on a 24 hour post who did not exchange items at the beginning or end of their shift at the Control Center time and one-half their then regular wage rate for ten minutes for each standard day during their basic work week until the Agency states in writing and administers a policy that the arriving employee does not have to handoff and/or communicate with the departing employee on post within ten minutes of the scheduled end of the departing employee's regular shift.
(D)     After April 30, 2001, pay each employee who worked the first shift of a 16 hour post who did not exchange items at the beginning or end of their shift at the Control Center time and one-half their then regular wage rate for ten minutes for each standard day during their basic work week until the Agency states in writing and administers a policy that the departing employee does not have to handoff and/or communicate with the arriving employee on post within ten minutes of the scheduled end time of the departing employee's regular shift.
(E)     "Employee" includes all unit employees working any length of time after January 1, 1996, past or present, living or dead. Amounts due deceased employees shall be paid to their estate. Any amount owed to an employee who, after the best reasonable efforts of both parties, can not be located, shall be placed in an interest bearing joint account under control of the Agency and Union to be spent for the benefit of the bargaining unit in a manner mutually agreeable to the Agency and Union.

Award at 45-46.



Footnote # 1 for 59 FLRA No. 106 - Authority's Decision

   The pertinent text of HRM § 610 is set forth in the Appendix to this decision.


Footnote # 2 for 59 FLRA No. 106 - Authority's Decision

   In August 2000, AFGE and the Agency settled the national grievance with the Agency agreeing to pay 120 million dollars to cover the period May 17, 1989 to January 1, 1996 for a nationwide class that included the unit herein. The National settlement agreement (NSA) stated in part that:

7.     The Parties agree that the following five institutions (. . . USP Leavenworth . . .) may not have implemented changes to comply with [HRM § 610] on or before January 1, 1996. If changes were not made to comply with Section 610.1 . . . negotiations at the local level . . . will take place to negotiate any payment due . . . unit members for the period between January 1, 1996 and the implementation date, if any, of pre and post procedures to comply with section 610.1 . . . .

      8.      . . . .

9.     This agreement does not preclude employees from pursuing claims after January 1, 1996, subject to the Master Agreement (CBA) requirements, laws, rules, and/or regulations.

Award at 18.


Footnote # 3 for 59 FLRA No. 106 - Authority's Decision

   As the Agency does not challenge the Arbitrator's arbitrability determination, it will not be discussed further in this decision.


Footnote # 4 for 59 FLRA No. 106 - Authority's Decision

   The Arbitrator distinguished the Authority's decision in United States Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Terre Haute, Indiana, 58 FLRA 327 (2003) (BOP, Terre Haute), from this case finding that the employees' work activities in dispute in this case, unlike BOP, Terre Haute, begin at the Control Center.


Footnote # 5 for 59 FLRA No. 106 - Authority's Decision

   Relevant portions of the award are set forth in the Appendix to this decision.


Footnote # 6 for 59 FLRA No. 106 - Authority's Decision

   The pertinent text of the laws referenced above are set forth in the Appendix to this decision.


Footnote # 7 for 59 FLRA No. 106 - Authority's Decision

   The term "accountable officer" is set forth in § 3415, Part 2, Chapter 3400, U.S. Department of the Treasury, Financial Manual (TFM), which implements 31 U.S.C.3302. Exceptions, Attachment E. Under Chapter 3400, Part 2, § 3420, "accountable officer" is defined as "A Federal Government official, employee, or agent who, on behalf of the United States, receives and maintains public finds, certifies vouchers, or maintains or draws checks upon accounts of the United States, in depositary banks designated by the Secretary." Id.


Footnote # 8 for 59 FLRA No. 106 - Authority's Decision

   As ¶¶ 3(C) and (D) are contrary to 5 C.F.R. § 551.412(a)(1), we find it is unnecessary to address the Agency's assertion that the remaining portions of ¶¶ 3(C) and 3(D) that concern a written "policy" for arriving/departing employees, respectively, is contrary to management's rights under § 7106(a) of the Statute. Award at 45.


Footnote # 9 for 59 FLRA No. 106 - Authority's Decision

   I