11:0029(15)AR - Justice, Medical Center for Federal Prisoner and AFGE Local 1612 -- 1983 FLRAdec AR
[ v11 p29 ]
The decision of the Authority follows:
11 FLRA No. 15 U.S. DEPARTMENT OF JUSTICE, MEDICAL CENTER FOR FEDERAL PRISONERS Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1612 Union Case No. O-AR-183 DECISION This matter is before the Authority on an exception to the award of Arbitrator Gerald Cohen filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. In addition, the Office of Personnel Management filed an amicus curiae brief and the Union filed a response to the brief. The dispute in this case concerns whether certain preshift and postshift activities of the employees involved constituted compensable hours of work. These activities included reporting to a control center to check out keys and detail pouches before proceeding to the duty station for the commencement of the eight-hour tour of duty. On completion of the tour of duty, the employees returned to the control center in order to check in the keys and pouches. A grievance was filed and ultimately submitted to arbitration claiming overtime compensation for the time spent on these activities. As to the time spent checking in and out keys and pouches, the Arbitrator agreed that this was compensable hours of work in the amount of ten minutes a day-- five minutes before and five minutes after the tour of duty. As his award in this regard, the Arbitrator therefore sustained the claim for overtime compensation for the time spent on these activities. However, as to the time spent proceeding to and from the control center and duty station, the Arbitrator determined that this time was not hours of work. As his award in this regard, the Arbitrator accordingly denied the grievance to the extent of the claim for compensation for this time. The Agency filed an exception expressly contending that "the award is based upon a misinterpretation of law and regulations pertaining to overtime compensation." Upon review the Authority finds to the extent indicated below that the award is deficient as contrary to 5 U.S.C. 5542. /1/ This case is not materially different from Federal Prison System and American Federation of Government Employees, Local No. 2459, 8 FLRA No. 20 (1982). In Federal Prison System the employees reported to a control room to check out keys and detail pouches before proceeding to their duty stations for the commencement of their tour of duty. On completion of their tour of duty, they returned to the control room to check in the keys and pouches. The Authority expressly ruled that "the type of preshift and postshift activities performed the employees in this case, including the time spent traveling between the control room and their duty station, is 'hours of work' within the meaning of 5 U.S.C. 5542." Id. at 2-3. Consequently, the Arbitrator in this case properly determined that the time spent checking in and out the keys and pouches was hours of work within the meaning of 5 U.S.C. 5542. /2/ Id. However, the travel time to and from the control center and duty station likewise constitutes hours of work, and consequently the Arbitrator's determination otherwise is contrary to 5 U.S.C. 5542. Id. Therefore, the denial of the grievance insofar as travel time to and from the control center and duty station was concerned is deficient as contrary to law. Because the award is deficient in this respect, the Authority finds it necessary to modify the award by vacating that portion of the award denying the grievance. However, in modifying the award in this manner, the Authority has made no determination as to the amount of compensation which may be due the employees as a result of the performance of the preshift and postshift activities involved, including the travel time to and from the control center and duty station. As indicated in Federal Prison System, that determination must now be made in a manner deemed appropriate by the parties in conjunction with the implementation of the award as modified. Id. at 3n.4. Such determination must of course be consistent with this decision of the Authority and must be made in accordance with applicable laws and regulations. /3/ Issued, Washington, D.C., January 14, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 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. /2/ Insofar as the Agency maintains in its arguments in support of the stated ground on which review was requested that this determination is contrary to law, the Agency's arguments are denied as providing no basis for finding the award deficient. /3/ In terms of what laws may be applicable, overtime compensation is also authorized for Federal employees under the Fair Labor Standards Act (FLSA). The preshift and postshift activities in this case apparently are "hours worked" within the meaning of the FLSA, Federal Prison System at 3n.3; see Baylor v. United States, 198 Ct.Cl. 331, 337-339 (1972), and consequently if these employees are not exempt, the determination of the amount of compensation that may be due the employees must be made accordingly. Federal Prison System at 3n.3. Similarly, because the determination of the amount of compensation which may be due must be made in accordance with applicable laws and regulations, the Agency's argument with respect to the time involved being de minimus under law is denied as providing no basis for finding the award, as modified consistent with this decision, deficient. See National Bureau of Standards, Boulder Laboratories and American Federation of Government Employees, Local 2186, 9 FLRA No. 53 (1982), at 3; The Adjutant General, State of Oklahoma, Air National Guard and American Federation of Government Employees, Will Rogers Air National Guard, Local 3953, 8 FLRA No. 23 (1982), at 3n.