11:0029(15)AR - Justice, Medical Center for Federal Prisoner and AFGE Local 1612 -- 1983 FLRAdec AR

 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.