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56 FLRA No. 170
UNITED STATES DEPARTMENT OF VETERANS
AFFAIRS, MEDICAL CENTER
HUNTINGTON, WEST VIRGINIA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2344
December 20, 2000
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1]
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert Herzog filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute). The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to provide police officers paid time to change into and out of uniforms at the beginning and end of each shift. He directed the Agency to provide police officers such time in the future.
For the reasons that follow, we set aside the award as contrary to law.
II. Background and Arbitrator's Award
The Union filed a grievance asserting that the Agency violated the parties' agreement by failing to provide police officers paid time to change into and out of uniforms at the beginning and end of each shift. When the grievance was unresolved, it was submitted to arbitration, where the Arbitrator framed the issue as follows: "Did the Employer violate Article 20, Section 3K by denying police officers' request for ten (10) minutes at the beginning and ending of their respective tours to change clothes? If so, what shall the remedy be?" Award at 2. [n2]
As relevant here, the Arbitrator found that, under Article 20, Section 3K of the parties' agreement, if the Agency permits officers to change clothes at work, "then the grievance must be granted[.]" Id. at 10. The Arbitrator found that the Agency permits officers to change clothes at work, and he sustained the grievance. As a remedy, he directed the Agency to begin providing 10 minutes of paid time at the beginning and ending of each tour of duty to change clothes.
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the award is contrary to 5 C.F.R. § 551.412(b). [n3] In this connection, the Agency asserts that, because the officers are not required to change clothes at work, the clothes-changing constitutes a preliminary and postliminary activity and, as such, is not compensable. See Exceptions at 5 (citing Bantom v. United States, 165 Ct. Cl. 78, 81 (1964), cert. denied, 379 U.S. 890, and Matter of William C. Hughes, Jr., 1979 WL 12667 (1979)). In addition, the Agency argues that the award violates its rights to determine its internal security practices and assign work.
B. Union's Opposition
The Union asserts that Office of Personnel Management (OPM) regulations implementing the Fair Labor Standards Act (FLSA) for federal employees must be interpreted consistently with regulations issued by the Department of Labor (DOL) implementing the FLSA for private sector employees. Therefore, according to the Union, 5 C.F.R. § 551.412(b) must be interpreted consistently with 29 C.F.R. § 785.50(b)(1), which permits compensation for preliminary and postliminary activities where such compensation is required by a collective bargaining agreement. [n4] The Union claims that the cases relied on by the Agency are distinguishable because they did not involve a situation [ v56 p991 ] where changing time was authorized by an agreement. The Union also argues that the award does not conflict with management's rights and that Article 20, Section 3K constitutes an appropriate arrangement.
IV. The award is contrary to 5 C.F.R. § 551.412.
The Authority reviews the questions of law raised by the award and the Agency's exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In conducting that assessment, the Authority defers to the Arbitrator's underlying factual findings. See id.
The FLSA, as amended by the Portal-to-Portal Act, provides that "activities which are preliminary to or postliminary to" an employee's "principal activity" are not compensable. 29 U.S.C. § 254(a). There is an exception requiring payment for such activities pursuant to "an express provision of a written or nonwritten contract . . . between [the employee's] collective bargaining representative and his employer." 29 U.S.C. § 254(b). See also 29 C.F.R. § 785.50, supra note 4.
There is no dispute that the clothes-changing at issue in this case is preliminary/postliminary activity. [n5] Thus, under the FLSA, the time spent changing clothes is not compensable unless compensation is required by a collective bargaining agreement. The award in this case requires payment pursuant to Article 20, Section 3K of the parties' agreement, which, by its plain terms and as interpreted by the Arbitrator, requires payment whenever clothes-changing at work is "permitted." Award at 2.
Consistent with the plain wording of the FLSA, OPM regulations that implement the FLSA for federal employees provide that preliminary and postliminary activities are not compensable. See 5 C.F.R. § 551.412(b). OPM's regulations are silent with respect to the collective bargaining agreement exception. However, the Union's argument that OPM's regulations, particularly 5 C.F.R. § 551.412(b), do not bar compensation for preliminary/postliminary activities that are made compensable by the terms of a collective bargaining agreement has been expressly rejected by the U.S. Court of Appeals for the District of Columbia Circuit. See United States Dep't of the Air Force v. FLRA, 952 F.2d 446 (D.C. Cir. 1991). In particular, the court held in that case that, in "barring compensation" for activities described in section 551.412(b) -- i.e., preliminary and postliminary activities --OPM exercised its "broad authority . . . to rule out . . . bargaining" over contract terms that provide payment for these activities. Id. at 451.
Neither party addresses that case or provides any basis that it should not apply here. Consistent with the court's holding, we find that the award in this case is contrary to section 551.412(b). Accordingly, we set aside the award. [n6]
The award is set aside.
Footnote # 1 for 56 FLRA No. 170
Footnote # 2 for 56 FLRA No. 170
Article 20, Section 3K of the parties' agreement provides, in pertinent part: "When change of uniform is required or permitted, the Department will provide ten (10) minutes at the beginning and ending of the tour for the employees to change clothes." Award at 2.
Footnote # 3 for 56 FLRA No. 170
5 C.F.R. § 551.412(b) provides, in pertinent part: "A preparatory or concluding activity that is not closely related to the performance of the principal activities is considered a preliminary or postliminary activity. Time spent in preliminary or postliminary activities is . . . not compensable, even if it occurs between periods of activity that are compensable . . . ."
Footnote # 4 for 56 FLRA No. 170
29 C.F.R. § 785.50(b)(1) provides, in pertinent part, that an employer is not relieved from liability for paying for preliminary or postliminary activities where they are: "compensable by . . . [a]n 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."
Footnote # 5 for 56 FLRA No. 170
The Authority has held that, where employees are not required to change clothes at their place of work, that activity is preliminary/postliminary. See AFGE, Local 1482, 49 FLRA 644, 647 (1994) (citations omitted). Cf. Bantom v. United States, 165 Ct. Cl. 78, 81 (1964) (police officers not entitled to compensation for changing into their uniforms at work, because they were permitted to wear their uniforms to and from work), cert. denied, 379 U.S. 890.
Footnote # 6 for 56 FLRA No. 170