American Federation of Government Employees, Local 1741 (Union) and United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Milan, Michigan (Agency)

[ v62 p113 ]

62 FLRA No. 31

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1741
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
MILAN, MICHIGAN
(Agency)

0-AR-4117

_____

DECISION

June 21, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to a preliminary and a final award of Arbitrator Richard E. Allen filed by the Union under § 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. part 2425. The Agency filed an opposition to the Union's exceptions.

      In the preliminary award, the Arbitrator found that the grievance was arbitrable and that any liability of the Agency for back pay would begin on the date that the parties requested an arbitrator. In the final award, the Arbitrator found that the Union had not established that the Agency failed to properly compensate employees for working overtime before and after their shifts and denied the grievance. For the reasons that follow, we conclude that the preliminary award is deficient with respect to the recovery period, and we remand for resubmission to the Arbitrator, absent settlement. In all other respects, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      This case is one in a series of disputes between various AFGE local unions and the Agency concerning overtime pay for pre-shift and post-shift activities under the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (FLSA). [n1]  These disputes follow an agency-wide grievance over this subject filed by AFGE in 1995 and settled by the parties in August 2000. Preliminary Award at 4; United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Marion, Ill., 61 FLRA 765, 765-66 (2006) (BOP, Marion). The settlement of the agency-wide grievance covered a period from 1989 to 1996. Exceptions, Exhibit D (Settlement Agreement). The Settlement Agreement resolved statute of limitations issues and acknowledged that five institutions, including the prison at issue in this case, "may not have implemented changes to comply with" Agency regulations concerning pre-shift and post-shift activities and provided that local-level negotiations "will take place to negotiate any payment due bargaining unit members for the period" after the 1996 cut-off date. Settlement Agreement, paras. 3, 7. [n2]  Further, the Settlement Agreement noted that employees were free to pursue claims after the 1996 date. Id., para. 9. [n3] 

      The grievance at issue in this case was filed in January 2000. It claimed that, since October 1995, the Agency had required employees to perform work before they were in a pay status. Exceptions, Exhibit E (formal grievance). The parties were unable to resolve the grievance and, in February 2000, the Union invoked arbitration. In April 2001, the parties requested that an arbitrator be appointed.

      [ v62 p114 ] The Arbitrator first resolved the following threshold issue in a preliminary award:

[W]hether the grievance is arbitrable due to the (1) timeliness in filing the January 14, 2000 grievance, and (2) in the delay of more than one year before there was a request for a panel of arbitrators?

Preliminary Award at 7. The Arbitrator rejected the Agency's claim that the grievance was untimely, finding that the pay dispute was "continuing" and thus considered timely because it was filed while the alleged violation continued to occur. Id. at 10. Next, the Arbitrator concluded that the Agency's "liability commenc[ed] from the date upon which the Union and [the Agency] acted by jointly executing" the request that an arbitrator be appointed in April 2001. Id. (emphasis in original). In reaching this result, the Arbitrator relied on an arbitration award holding that an employer's liability for a continuing violation "is limited to the date upon which the [g]rievant finally acted on the facts . . . ." Id. at 12 (quoting Raynor Manufacturing Co., 93-1 ARB 3007, 3037 (Kravit, 1991)). [n4] 

      In the merits award, the Arbitrator considered two additional procedural issues. First, he rejected the Agency's argument that the grievance should be limited to time spent by employees at the beginning of their shifts, holding that the Agency was on notice that the grievance related to both pre-shift and post-shift time. Merits Award at 17-22. Second, the Arbitrator agreed with the Agency's claim that the Union had only presented evidence concerning 8 of the 18 departments at the facility, holding that:

[T]his Award must be limited to the evidence presented at the Hearing, and I shall consider only the issue related to the employees who testified and gave evidence on hours of work at the start and end of [their] shifts pertaining to their respective departments.

Id. at 22.

      The Arbitrator evaluated the evidence that employees were required to perform uncompensated work prior to and after their ordinary shifts. In so doing, the Arbitrator found that the Agency's human resources manual provides that the shift of employees who are required to pick up equipment at the control center starts and ends at the time the employees pick up or drop off equipment, with reasonable time included for travel to and from their assigned post. The Arbitrator also found that shifts may "overlap" so that employees have time to relieve other employees within both employees' shifts, that employees were required to receive their equipment no later than the beginning of their shift, and that employees were not considered late if they arrived in the equipment line in a reasonable time to get equipment prior to their shift. Id. at 6.

      Based on testimony, the Arbitrator found that employees claimed that it took "anywhere from 3 to 5 minutes, to as much as 15 minutes" to pass through the control center, obtain their equipment, and travel to their posts. Id. at 9. He also found that the employees' time estimates "varied" from day to day, depending on the circumstances of each day. Id. The Arbitrator noted testimony by employees that they arrived at work prior to the beginning of the shift, "between 5 and 10 minutes" for "a majority" of those who testified. Id. at 12. He concluded that this was voluntary, "out of . . . respect for one's co-worker." Id.

      The Arbitrator also noted testimony concerning time spent at the conclusion of employees' shifts, when the relieving employee is late and the employee on duty has to remain beyond the normal quitting time. According to the Arbitrator, despite the overlap of shifts by five minutes at the beginning and the end of a shift, there were "problems with improper implementation[,]" such as employees being late or supervisors delaying employees. Id. at 13. Also according to the Arbitrator, employees would not request overtime unless the amount of time exceeded 15 or 20 minutes, depending on the employee and that such overtime was "normally granted." Id. at 14. In this regard, the Arbitrator described testimony of several supervisors that employees received overtime whenever they worked beyond the end of their shift, testimony by employees that several supervisors had denied overtime, and testimony by Agency witnesses that those supervisors were not working at the facility on the dates the employees claimed they were denied overtime. Id. at 15. According to the Arbitrator, the associate warden testified that employees knew that they were required to seek authorization if they were required to work overtime.

      Addressing the appropriate legal standards, the Arbitrator found that the FLSA requires that employees be paid once they have begun their principal work activities, but not for activities performed before and after the principal activities, unless these extra activities are an integral and indispensable part of the principal activities. The Arbitrator concluded that employees are not [ v62 p115 ] entitled to compensation if they voluntarily report to work early "until they actually commence their regularly required duties" and that employees are not entitled to compensation for time waiting in line, except that they are entitled to be paid after they have picked up tools and equipment. Id. at 24.

      The Arbitrator also concluded that, for employees who were required to obtain keys and equipment at the control center, waiting in line to obtain these items was not compensable, and that the workday began when the employees received the items and ended when they returned them at the end of the shift. Id. at 23-24. The Arbitrator found that the Agency's manual provided that employees who arrived in the line in a reasonable time prior to the shift would not "be considered late" if there was a delay in the line. Id. at 25. The Arbitrator also found that the Agency provides for a 10 minute "overlap" in shifts to allow for the arrival and departure of employees and that there was "considerable testimony" from both parties that employees were not required to report to work early. Id. at 26, 28. The Arbitrator concluded that the witnesses' estimates of the time it took to pass through the control center, draw equipment, and travel to the employee's duty post ranged from 3 to 15 minutes, but that no overtime pay was due because the employees were not required to report early, there was "no way of knowing the actual amount of alleged early work activity claimed[,]" and there was no evidence that employees had made requests for overtime. Id. at 28.

      With respect to the Union's claim for overtime after the workday, the Arbitrator concluded that the 10 minutes of overlap in the shifts was sufficient time for the employees to travel "to and from all duty posts." Id. at 29. Further, the Arbitrator found that where there were valid circumstances that delayed the relief of an employee, the employee had the opportunity to request overtime pay. In this regard, the Arbitrator relied on the testimony of "[n]umerous Union witnesses" that overtime was normally granted when requested and that employees sometimes did not "bother" to request overtime for small time periods. Id. at 30. Further, the Arbitrator discredited the Union's claim that overtime was sometimes denied, finding that the Agency had established that the supervisors at issue were not at work on the day the denial allegedly occurred. Id.

      The Arbitrator also found that the Agency had a policy of paying overtime for time spent traveling between the control center and the duty location outside normal duty hours, that employees are required to submit a request when this situation occurs, and that no overtime would be granted when the employee had not followed these procedures and created the documentation necessary to establish the claims. Id. at 34. In response to the Union's claim that the Agency had the power to establish a system of records that would have documented this overtime, such as a time clock, the Arbitrator stated that he "[w]as not empowered to order management to adopt a particular procedure for recording employee hours of work" and that the "verbal claims of employees, as to the exact amount of time they worked, cannot be the basis for finding a violation of federal statutes governing hours of work." Id. at 37. The Arbitrator also rejected the Union's claims for specific periods of overtime pay for particular offices, stating that there was "no documented proof" for these claims, which were based on "estimates" tied to "particular  . . . circumstances," and not to specific employees. Id. at 38.

      Based on the forgoing, the Arbitrator concluded that the Union had failed to prove that the Agency violated the collective bargaining agreement or any statute requiring it to pay overtime. He therefore denied the grievance.

III.     Positions of the Parties

A.      Union's Exceptions

      The Union argues that the preliminary award fails to draw its essence from the Settlement Agreement. According to the Union, the Settlement Agreement resolved FLSA statute of limitations issues between the parties by allowing employees to pursue claims for any violations occurring after January 1, 1996. The Union claims that the preliminary award does not provide a plausible interpretation of this agreement and must be remanded to the Arbitrator.

      The Union also argues that the preliminary award is contrary to law because the Arbitrator failed to apply the FLSA statute of limitations, set out at 29 U.S.C. § 255(a) (§ 255(a)). [n5]  According to the Union, Authority precedent requires that the FLSA limitation period be applied to a grievance alleging an FLSA violation and this limitation period may not be waived. The Union asserts that the Arbitrator erred in refusing to allow the presentation of any evidence regarding the period before the date the grievance was moved to arbitration. The Union argues that the Arbitrator's refusal to hear such evidence leaves the Authority without a record to determine whether the Agency violated the FLSA and, if so, [ v62 p116 ] whether the 3-year statute of limitations for a willful violation should be applied. The Union therefore requests that the case be remanded for findings on these issues.

      Turning to the merits award, the Union asserts that the award is contrary to law because it places the burden on employees to control and monitor hours of work, waiving liability where employees have not documented overtime hours and where employees "voluntarily work unpaid hours." Exceptions at 42. According to the Union, the Agency ignored its responsibility to "see that the work is not performed if it does not want it to be performed" and by failing to "keep complete and accurate records." Id. at 40 (quoting 29 C.F.R. § 785.13; 5 C.F.R § 551.402(b)). The Union claims that the Arbitrator's finding that "management cannot be expected to control . . . the exact arrival time of each employee" is contrary to these standards and that the authority relied on by the Agency before the Arbitrator relates to circumstances where the employer did not know that the employee was working overtime, not to a situation like a prison where "the presence of every person in the institution [must] be known at every moment." Id. at 44 (quoting Merits Award at 26), 46.

      The Union further argues that the Arbitrator failed to apply the shifting burdens of proof set out by the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) (Mt. Clemens). According to the Union, once the employees established that they had performed work for which they were not properly compensated, the Arbitrator was required to make a reasonable inference and award appropriate damages unless the Agency established that such damages were not reasonable. Id. at 48-49. In this regard, the Union asserts that its witnesses established that they had worked unpaid overtime in 11 job classifications and that the Agency failed to produce any witnesses to testify concerning the employees' actual hours. The Union claims that it was improper for the Arbitrator to dismiss the claims based on a lack of "documented proof" by the employees, when it was the Agency who had failed to satisfy its burden of proof. Id. at 53  (quoting Merits Award at 38).

      Finally, the Union argues that the FLSA does not permit employees to waive their statutory rights and voluntarily work unpaid overtime. Id. at 55 (citing Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 713 (1945) (O'Neil)). According to the Union, the Arbitrator thus erred in refusing to award pay to employees that he found to have voluntarily arrived at work early.

B.      Agency's Opposition

      With respect to the preliminary award, the Agency argues that the issue of the period for computing damages is moot because the Arbitrator found that there was no violation of the FLSA. In addition, the Agency contends that the period of liability is a question of procedural arbitrability, which is not subject to review by the Authority. The Agency also asserts that the Union has not established that the preliminary award fails to draw its essence from the parties' collective bargaining agreement.

      With respect to the merits award, the Agency argues that the Arbitrator's refusal to compensate employees for time spent prior to picking up equipment at the control center is consistent with the FLSA and the Authority's case law. In the alternative, the Agency claims that the Arbitrator's finding that the "majority of the length of time was between 5 and 10 minutes" for pre-shift activities indicates that the time spent was de minimis under 5 C.F.R. § 551.412 (a)(1). Opposition at 13. The Agency also claims that the Arbitrator properly found that the employees had not established that they had performed uncompensated overtime work. In this regard, the Agency claims that the Arbitrator did not base his decision on the employee's failure to provide "documentary" evidence of their claims, but on their failure to provide "documented and credible" evidence that they worked uncompensated overtime. Id. at 16. Finally, the Agency contends that the Arbitrator did not find that employees would not be compensated for "voluntary work." Id. at 18. Rather, the Agency argues that the Arbitrator refused employee claims for compensation for voluntarily reporting early, when this did not involve performing compensable work.

IV.      Analysis and Conclusions

A.      The preliminary award does not fail to draw its essence from the parties' agreement.

      The Union argues that the Arbitrator's limitation of back pay to the date the parties requested a panel of arbitrators does not draw its essence from paragraphs 3, 7, and 9 of the Settlement Agreement. The Authority reviews settlement agreements in the same manner as collective bargaining agreements, using the deferential standard that federal courts use in reviewing arbitration awards in the private sector. AFGE Local 12, 61 FLRA 507, 508 (2006); see 5 U.S.C. § 7122(a)(2); AFGE Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the [ v62 p117 ] collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      While the Union is correct that the Settlement Agreement provides that "statute of limitations" are "resolved" by the agreement, nothing in the agreement states that this resolution also applies to claims arising after January 1, 1996, which are specifically not included in the settlement, pursuant to paragraph 9 of the agreement. Settlement Agreement, para. 3, 9. Rather, the Settlement Agreement provides that such claims are subject to the "Master Agreement" and "laws," without any explanation of what recovery period would apply to them. Id., para. 9. As such, nothing in the Settlement Agreement indicates that the failure of the award to apply a recovery period back to January 1, 1996 for such claims, as requested by the Union, is unconnected with the terms of the agreement, implausible, or irrational. Accordingly, we deny this exception. [n6]  In view of this resolution, we need not address the Agency's claim that the Settlement Agreement cannot provide for a longer recovery period than the FLSA.

B.      The preliminary award is contrary to law with respect to the recovery period.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. United States Dep't of Def., Dep'ts of the Army and the Air Force, Alabama Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      The Authority has held, at least where parties have not agreed contractually to back pay periods different from those in § 255(a), that the statutory periods control. United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Terre Haute, Ind., 60 FLRA 298, 299-300 (2004) (BOP, Terre Haute); United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Office of NOAA Corps Operations, Atlantic Marine Center, Norfolk, Va., 55 FLRA 816, 821 (1999) (NOAA); NTEU, 53 FLRA 1469, 1494 (1998). Specifically, the Authority has concluded that this question is one of substantive law and not a procedural issue within the discretion of the arbitrator, NTEU, 53 FLRA at 1490, 1493-94, and that an award limiting the recovery period of back pay to the filing date of the grievance is contrary to law, NOAA, 55 FLRA at 821.

      Here, the Arbitrator found that the grievance was timely filed on January 14, 2000. However, he then limited the back pay remedy to April 3, 2001, the day he found the grievance became "effective" because the parties requested a panel of arbitrators. Preliminary Award at 10. In reaching this conclusion, the Arbitrator relied on private sector arbitration awards limiting the back pay period of "continuing" grievances. Id. at 12-14. The Arbitrator's failure to apply the FLSA statute of limitations in computing back pay is contrary to the above case law, which holds that an arbitrator does not have the discretion to ignore the FLSA recovery period.

      The Agency argues that the Arbitrator's decision on the liability period is a matter of procedural arbitrability within the discretion of the Arbitrator, not the Authority. However, the Authority has held that a challenge concerning the recovery period for back pay under the FLSA is not an issue of procedural arbitrability. BOP, Terre Haute, 60 FLRA at 299. As explained above, the Authority has specifically held that the recovery period under the FLSA is a substantive matter, rather than a procedural matter. NTEU, 53 FLRA [ v62 p118 ] at 1490, 1493-94; NOAA, 55 FLRA at 821. The Agency's argument is thus unavailing. [n7] 

      The Agency also argues that the issue of the limitation period is "moot" because no violation was found and no damages awarded. Opposition at 8. It is well established that a dispute becomes moot when the parties no longer have a legally cognizable interest in the outcome and that the burden of demonstrating that neither party has a legally cognizable interest is a heavy one and is on the party urging mootness. United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Detention Cent'r, Guaynabo, P.R., 59 FLRA 787, 790 (2004). The party urging mootness meets its burden by demonstrating that: (1) there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely or irrevocably eradicated the effects of the alleged violation. Id.

      As explained above, because the back pay period extends 2 or 3 years prior to the time the grievance was filed in January 2000, depending on whether a violation is determined to be willful, the Union has a legally cognizable right to establish the Agency's liability for any part of that period. The Arbitrator refused to consider any evidence concerning the period prior to April 2001. September 23, 2004, Transcript at 28, 32. As the Arbitrator did not have any evidence concerning these claims before him, his finding that the Agency did not violate the FLSA after this period does not resolve the prior claims. As these claims were properly before the Arbitrator and are unresolved, the Agency has not established that they are moot.

      For these reasons, the Arbitrator's failure to apply the recovery period set out in the FLSA is deficient. As the Arbitrator did not permit the Union to present evidence concerning claims during this period and did not make any findings concerning this period, we do not have a sufficient record before us to resolve these claims. When the record does not contain sufficient findings for the Authority to resolve the necessary claims, it remands the award to the parties for resubmission to the arbitrator, absent settlement, for further findings. [n8]  E.g., NTEU, 61 FLRA 729, 733 (2006) (when the arbitrator erred in finding the grievance not substantively arbitrable, award was remanded); NFFE Local 1437, 53 FLRA 1703, 1710-12 (1998) (remand when insufficient record evidence to resolve overtime pay claims); NOAA, 55 FLRA at 821 (same). Accordingly, we remand this issue to the parties for resubmission to the Arbitrator, absent settlement. [n9] 

C.      The merits award is not contrary to law.                              

      For the reasons that follow, we deny the Union's exceptions, contending that the merits award is contrary to law.

1.      The award properly denies overtime pay for employees' pre-shift activity.

      As a general matter, employees are entitled to be paid for time before and after their ordinary work shift if they are engaged in activities that are "closely related to [their] principal activities, and . . . indispensable to" those activities. 5 C.F.R. § 551.412(a) (1); BOP, Marion, 61 FLRA at 770. For prison employees, the Authority has found that employees must be compensated from the time that they pick up equipment necessary for their jobs, including time traveling to and from the employee's duty station from the point where equipment is picked up. United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Terre Haute, Ind., 58 FLRA 327, 329 (2003) (DOJ); see generally IBP, Inc. v. Alvarez, 546 U.S. 21 (2005). However, employees are not entitled to reimbursement for time spend traveling to and from the worksite if they are not required to pick up equipment, even if they are required to check in at a different location. DOJ, 58 FLRA at 329-30.

      Consistent with this precedent, the Arbitrator found that employees are entitled to be paid once they pick up their equipment, but that they are not entitled to be paid for time that they voluntarily report to work early, but do not pick up their equipment and begin [ v62 p119 ] working, or for time waiting in line. The Union agrees that the point at which equipment is picked up is the start of the compensable work day, but argues that employees are entitled to pay for time that they voluntarily come to work early because it is the Agency's responsibility to exercise control that employees do not perform work that it does not intend. Exceptions at 44 (citing 5 C.F.R. § 551.402(a)). However, the principle relied on by the Union only applies to work performed by the employees. As explained above, time spent traveling to work and waiting for work to begin, whether in line or not, is not considered to be compensable time. Nothing in the FLSA requires the Agency to pay employees for voluntary activity that does not qualify as compensable work. See generally Amos v. United States, 13 Cl. Ct. 442, 450 (1987) (employees entitled only to pay for "time reasonably required, after gaining possession of the keys and other items, to leave the control room" and walk to work). As such, the Union has not established that the award is contrary to law because it did not award compensation for employees voluntarily arriving at work early.

2.      The Arbitrator applied the correct burden of proof.

      Under the FLSA, employees have the burden of establishing that they have performed work for which they have not been properly compensated. BOP, Marion, 61 FLRA at 771 (citing Mt. Clemens, 328 U.S. at 687). However, when the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes, the employee is not required to establish the exact number of hours worked, but is only required to provide "sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Mt. Clemens, 328 U.S. at 687. The burden then "shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to [negate] the reasonableness of the inference to be drawn from the employee's evidence." Id. at 687-688.

      Here, the Arbitrator denied the employees' claims that they worked overtime, finding that the 10-minute overlap in shifts was generally sufficient time to allow for the arrival and departure of employees. Further, he found that, where valid circumstances delayed the relief of an employee, the employee had the opportunity to request overtime. In this regard, the Arbitrator relied on the testimony of Union witnesses that overtime was normally granted when requested and credited testimony, which contradicted testimony from the Union that overtime had been denied by certain supervisors. The Arbitrator also rejected the Union's claims for specific periods of overtime for particular offices, stating that the Union had not offered "documented proof" for these "estimates." Merits Award at 38.

      The Union claims that the Arbitrator did not apply the correct burden of proof. In this regard, the Union argues that the Arbitrator's finding that "there are no time clocks, or any other recording devi[ces], to precisely determine an employee's arrival time" and his finding that there was a "lack of documented proof as to the exact amount of time" employees did work establishes that the Agency's recordkeeping is inadequate. Exceptions at 51 (quoting Merits Award at 25, 37). As a result, the Union argues that the Arbitrator should have accepted the employees' general testimony concerning the amount of overtime worked and shifted the burden of proof to the Agency to specifically disprove this testimony.

      Contrary to the Union's argument, there is no indication that the Arbitrator found the Agency's time keeping records to be inadequate. Instead, he found that the Agency used a system where employees' specific hours were set and recorded by the Agency and employees were required to submit requests for overtime pay where circumstances delayed their departure. He found that "[t]he procedure for claiming overtime pay is in place, now the employees have to use it to get paid." Merits Award at 38 (emphasis in original). As the Arbitrator found that the Agency's records were adequate under the circumstances, where employees were paid overtime when they submitted a request, he was not required to shift the burden of proof to the Agency.

      Further, the Union has not established that the Agency's failure to use a time clock or to keep exact documented proof of employees' time means that its recordkeeping is necessarily inadequate. In this regard, the regulations governing this matter require only that an agency "keep complete and accurate records" and do not require recording devices to precisely record arrival and departure times. 5 C.F.R. § 551.402. Further, as a general matter, the FLSA does not require that time records be  kept in any particular form and the "use of time clocks is not required." Kearns, The Fair Labor Standards Act, BNA Books at 950 (1999); see 29 C.F.R. § 785.48 (time clock not required); see also 5 U.S.C. § 6106 ("A recording clock may not be used to record time of an employee of an Executive department in the District of Columbia."). Thus, the findings relied on by the Union do not establish that the Agency's records were inadequate.

      Contrary to the Union's argument concerning the employees' failure to document overtime by requesting [ v62 p120 ] it, the Authority has rejected a union's claim that it was improper for an arbitrator to take employees' failure to submit overtime requests into account in evaluating overtime pay claims. AFGE Local 801, Council of Prison Locals 33, 58 FLRA 455, 456, 457 (2003). In addition, the courts have found that employees did not satisfy their initial burden of proof that they worked uncompensated overtime in situations where the employer was not aware of the claimed work because employees failed to follow overtime reporting procedures. Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981) (employee overtime pay claim rejected where employee knew overtime was supposed to be reported on time sheet, he had been paid for all overtime reported, and he then claimed additional hours at a later date); see also Newton v. City of Henderson, 47 F.3d 746, 749 (5th Cir. 1995) (claim denied where overtime not authorized and employee ignored procedure requiring that overtime request be made within 72 hours of the time worked); Davis v. Food Lion, 792 F.2d 1274, 1277-78 (4th Cir. 1986) (testimony of off-the-clock overtime work rejected where no employee notified the employer and employer had policy against off-the-clock work); White v. Washington Gas, 2005 U.S. Dist. LEXIS 3461 (D. Md., Mar. 4, 2005) (claim denied where employee did not report hours on time sheet and did not ask to be paid).

      The Union objects that these decisions are not applicable to the instant case because they "involve[] unique circumstance[s] making it impossible for the employer to know whether the employee was working" and because the cases do not permit an employer to "negligently maintain records" or "deliberately turn its back on a situation." Exceptions at 46, 47. Contrary to the Union's argument, the employer's knowledge of whether an employee is working overtime is an element of any claim, such as this one, that the employer "suffered or permitted" overtime work. See 5 C.F.R. § 551.104. [n10]  Here, in finding permissible the Agency's procedure of requiring employees to notify their supervisors when they had worked overtime, the Arbitrator concluded that a "supervisor cannot be expected to complete a form for authorized overtime, without first being advised of the claim." Merits Award at 37. The facts found by the Arbitrator are, therefore, consistent with a conclusion that the Agency did not know of the work claimed by the Union.

3.      The award is not contrary to law in refusing to compensate employees who voluntarily worked overtime.

      Finally, the Union asserts that the award is contrary to law because the Arbitrator permitted employees to voluntarily work overtime, a practice prohibited by the FLSA. Exceptions at 55 (citing O'Neil, 324 U.S. at 713). However, as explained above, the Arbitrator did not find that the employees volunteered to work, but that they voluntarily came to work early -- time which is not compensable work whether voluntary or not. The Union also relies on the principle that employers may not "lure an employee into initialing a time sheet without overtime." Id. (citing Humana v. Shook, 798 F.2d 469 (6th Cir. 1986)). The Union does not, however, demonstrate how this principle applies here. As such, the Union's arguments are unavailing.

V.      Decision

      The preliminary award is contrary to law with respect to the recovery period. This issue is remanded to the parties for resubmission to the Arbitrator, absent settlement. In all other respects, the Union's exceptions are denied.



Footnote # 1 for 62 FLRA No. 31 - Authority's Decision

   E.g., United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Marion, Ill. 61 FLRA 765 (2006) (BOP, Marion); United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Leavenworth, Kan., 59 FLRA 593 (2004) (BOP, Leavenworth); AFGE Local 3882, 59 FLRA 469 (2003); AFGE Local 801, Council of Prison Locals 33, 58 FLRA 455 (2003); United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Terre Haute, Ind., 58 FLRA 327 (2003), on exceptions after remand, 60 FLRA 298 (2004).


Footnote # 2 for 62 FLRA No. 31 - Authority's Decision

   Paragraphs 3 and 7 of the Settlement Agreement provide, in pertinent part:

3. . . . The parties agree that any and all statutes of limitations pertaining to the FLSA, FEPA, or any other pay acts are met and resolved by this agreement.
7. The Parties agree that . . . FCI Milan . . . may not have implemented changes to comply with section 610.1 of the Human Resource Manual on or before January 1, 1996. If changes were not made . . . , negotiations at the local level . . . will take place to negotiate any payment due bargaining unit members for the period between January 1, 1996 and the implementation date . . . of the Human Resources Manual.

Exceptions, Exhibit D.


Footnote # 3 for 62 FLRA No. 31 - Authority's Decision

   Paragraph 9 of the Settlement Agreement provides, in pertinent part:

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

Id.


Footnote # 4 for 62 FLRA No. 31 - Authority's Decision

   The Arbitrator also issued a second preliminary award concerning other procedural objections made by the Agency. As there are no exceptions to this award, it will not be discussed further.


Footnote # 5 for 62 FLRA No. 31 - Authority's Decision

   Section 255(a) provides, in pertinent part, that claims shall be filed "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 62 FLRA No. 31 - Authority's Decision

   We note that arbitration awards are not precedential and the fact that an award is inconsistent with earlier awards construing the same contract terms that have been upheld by the Authority does not provide a basis for finding the award deficient. AFGE Local Union No. 171, 58 FLRA 469, 470 (2003). Therefore, the fact that prior awards have awarded overtime pay for the periods requested by the Union here does not render this award deficient. See, e.g., BOP, Marion, 61 FLRA at 766, 768 (upholding award of back pay from 1996 under 1999 local grievance covered by paragraph 9 of Settlement Agreement ); BOP, Leavenworth, 59 FLRA at 593, 594 (resolving 1996 local grievance under terms of Settlement Agreement).


Footnote # 7 for 62 FLRA No. 31 - Authority's Decision

   The Authority has held open the question of whether parties might agree contractually to a recovery period different from § 255(a). However, we have rejected the Union's claim that the Settlement Agreement resolved FLSA statute of limitations issues between the parties by allowing employees to pursue claims for any violations occurring after January 1, 1996. Consequently, we need not address whether such an agreement would be enforceable. See BOP, Marion, 60 FLRA at 300 n.3; NTEU, 53 FLRA at 1494 n.17.


Footnote # 8 for 62 FLRA No. 31 - Authority's Decision

   We note that the instant situation, where the record is insufficient for the Authority to determine whether a remedy is appropriate, does not fall within the category of cases where the Authority has struck down the sole remedy ordered by an arbitrator as contrary to law and refrained from remanding the award for an additional remedy. See United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio., 59 FLRA 248, 252 (2003) (Chairman Cabaniss concurring; Member Pope dissenting, in part).


Footnote # 9 for 62 FLRA No. 31 - Authority's Decision