Federal Prison System (Agency) and American Federation of Government Employees, Local No. 2459 (Union)

 8 FLRA No. 20
 
 FEDERAL PRISON SYSTEM
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL NO. 2459
 Union
 
                                            Case No. 0-AR-87
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR PRESTON J. MOORE FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE AGENCY
 FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE RELEVANT TO THIS CASE /2/
 AROSE WHEN THE ACTIVITY NOTIFIED ITS EMPLOYEES THAT THEY WERE REQUIRED
 TO BE AT THEIR ASSIGNED DUTY STATIONS DURING THEIR ENTIRE TOUR OF DUTY.
 CONSEQUENTLY, THE EMPLOYEES WERE REQUIRED TO REPORT FIRST TO A CONTROL
 ROOM TO CHECK OUT KEYS AND DETAIL POUCHES BEFORE PROCEEDING TO THEIR
 DUTY STATIONS FOR THE COMMENCEMENT OF THEIR TOUR.  ON COMPLETION OF
 THEIR TOUR OF DUTY, THEY WERE THEN OBLIGATED TO AGAIN PROCEED TO THE
 CONTROL ROOM IN ORDER TO RETURN THE KEYS AND POUCHES.  THE UNION FILED A
 GRIEVANCE CLAIMING THAT THE EMPLOYEES WERE ENTITLED TO COMPENSATION FOR
 OVERTIME SPENT IN CHECKING IN AND OUT THE KEYS AND POUCHES AND
 PROCEEDING TO AND FROM THE CONTROL ROOM AND THEIR DUTY STATIONS.  THE
 GRIEVANCE WAS NOT RESOLVED AND WAS SUBMITTED TO ARBITRATION ON THE ISSUE
 OF WHETHER SUCH ACTIVITIES CONSTITUTED WORK FOR WHICH THE EMPLOYEES WERE
 ENTITLED TO BE COMPENSATED.
 
    THE ARBITRATOR FIRST QUESTIONED WHETHER REPORTING TO THE CONTROL ROOM
 COULD PROPERLY CONSTITUTE WORK SUCH THAT THE TIME SPENT TRAVELING
 BETWEEN THE CONTROL ROOM AND THE DUTY STATION WAS COMPENSABLE WORK
 TIME.
  HE ALSO QUESTIONED WHETHER THE TIME SPENT ON SUCH ACTIVITIES COULD BE
 CONSIDERED DE MINIMUS.  ALTHOUGH HE CONCLUDED THAT THE AMOUNT OF TIME
 INVOLVED WAS NOT DE MINIMUS, HE DETERMINED THAT UNDER APPLICABLE LAW AND
 REGULATION THE TIME SPENT TRAVELING BETWEEN THE CONTROL ROOM AND DUTY
 STATION COULD NOT LEGALLY CONSTITUTE HOURS OF WORK.  ON THIS BASIS HE
 DENIED THE GRIEVANCE.
 
    AS ONE OF ITS EXCEPTIONS, THE UNION ESSENTIALLY CONTENDS THAT THE
 ARBITRATOR'S DENIAL OF THE GRIEVANCE ON THE BASIS THAT THE TIME AT ISSUE
 HEREIN DID NOT CONSTITUTE WORK IS CONTRARY TO LAW.  THE AUTHORITY
 AGREES.  THE ARBITRATOR'S DETERMINATION THAT THE TIME SPENT TRAVELING
 BETWEEN THE CONTROL ROOM AND DUTY STATION COULD NOT LEGALLY CONSTITUTE
 HOURS OF WORK IS CONTRARY TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS
 AMENDED, U.S.C. 5542.  UNDER SECTION 5542 A FEDERAL EMPLOYEE MAY BE
 ENTITLED TO OVERTIME COMPENSATION FOR "HOURS OF WORK" IN EXCESS OF 8
 HOURS IN A DAY AND 40 HOURS IN A WEEK.  CONTRARY TO THE DETERMINATION OF
 THE ARBITRATOR, THE TYPE OF PRESHIFT AND POSTSHIFT ACTIVITIES PERFORMED
 BY THE EMPLOYEES IN THIS CASE, INCLUDING THE TIME SPENT TRAVELING
 BETWEEN THE CONTROL ROOM AND THEIR DUTY STATIONS, IS "HOURS OF WORK"
 WITHIN THE MEANING OF 5 U.S.C. 5542.  /3/ BAYLOR V. UNITED STATES, 198
 CT.CL. 331(1972);  ALBRIGHT V. UNITED STATES, 161 CT.CL. 356, 361(1963).
  THE ACTIVITIES INVOLVED HEREIN, PROCEEDING TO A CONTROL ROOM AND
 CHECKING OUT KEYS AND DETAIL POUCHES BEFORE CONTINUING ON TO VARIOUS
 POSTS OF DUTY FOR THE START OF THE TOUR OF DUTY, ARE ESSENTIALLY
 PARALLEL TO THOSE PRESENT IN BAYLOR AND ALBRIGHT WHERE IT WAS HELD THAT
 THE EMPLOYEES WERE ENTITLED TO COMPENSATION FOR OVERTIME SPENT IN
 PERFORMING ACTIVITIES SUCH AS CHANGING INTO AND OUT OF UNIFORMS, DRAWING
 GUNS, RECEIVING SPECIAL INSTRUCTIONS, AND PROCEEDING TO VARIOUS POSTS OF
 DUTY.  AS IN BAYLOR AND ALBRIGHT, THE PRESHIFT AND POSTSHIFT ACTIVITIES
 PERFORMED BY THE EMPLOYEES HEREIN ARE "NECESSARILY, PRIMARILY, AND
 PREDOMINANTLY FOR THEIR EMPLOYER'S BENEFIT." 198 CT.CL. 331, 357)1972).
 CONSEQUENTLY, THE ARBITRATOR'S AWARD, WHICH DENIED THE GRIEVANCE SOLELY
 BECAUSE THE ACTIVITIES DID NOT CONSTITUTE HOURS OF WORK, IS DEFICIENT
 UNDER THE STATUTE.  /4/
 
    FOR THIS REASON AND PURSUANT TO SECTION 2425.4 OF THE AUTHORITY'S
 RULES AND REGULATIONS, THE PORTION OF THE ARBITRATOR'S AWARD PERTAINING
 TO OVERTIME PAY IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 10, 1982
 
                        RONALD W.HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ THE PORTION OF THE ARBITRATOR'S AWARD DEALING WITH A GRIEVANCE
 CONCERNING THE ISSUANCE OF FOUL WEATHER CLOTHING IS NOT AT ISSUE IN THIS
 CASE.
 
    /3/ OVERTIME COMPENSATION FOR FEDERAL EMPLOYEES IS ALSO AUTHORIZED BY
 THE FAIR LABOR STANDARDS ACT (FLSA), 29 U.S.C. 201 ET SEQ., FOR
 NONEXEMPT EMPLOYEES.  NONEXEMPT FEDERAL EMPLOYEES MAY BE ENTITLED TO
 OVERTIME COMPENSATION UNDER FLSA FOR "HOURS WORKED" IN EXCESS OF 40
 HOURS A WEEK, AND WHEN ENTITLED TO OVERTIME UNDER BOTH TITLE 5 AND THE
 FLSA, THEY ARE PAID UNDER THE STATUTE WHICH GIVES THEM THE GREATER
 BENEFIT.  WITHOUT DECIDING WHETHER THE EMPLOYEES IN THIS CASE ARE EXEMPT
 OR NONEXEMPT FROM THE FLSA, THE PRESHIFT AND POSTSHIFT ACTIVITIES IN
 THIS CASE, INCLUDING THE TIME SPENT TRAVELING BETWEEN THE CONTROL ROOM
 AND DUTY STATIONS, APPEAR TO BE "HOURS WORKED" WITHIN THE MEANING OF THE
 FLSA. SEE BAYLOR V. UNITED STATES, 198 CT.CL. 331, 337-339(1972).
 
    /4/ THE AUTHORITY'S DECISION IN THIS CASE IS LIMITED TO THE
 ARBITRATOR'S FINDING THAT THE PRESHIFT AND POSTSHIFT ACTIVITIES DID NOT
 CONSTITUTE HOURS OF WORK AND, IN FINDING THE AWARD DEFICIENT, THE
 AUTHORITY MAKES NO DETERMINATION AS TO THE AMOUNT OF COMPENSATION, IF
 ANY, WHICH MAY BE DUE EACH OF THE EMPLOYEES INVOLVED.  THAT
 DETERMINATION MUST BE MADE IN ACCORDANCE WITH APPLICABLE LAWS AND
 REGULATIONS AND IS FOR RESOLUTION IN A MANNER DEEMED APPROPRIATE BY THE
 PARTIES.