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Federal Bureau of Prisons
Atwater, California
and
AFGE Local 1242
125 LA (BNA) 707
FMCS Case No. 05-57849
September 18, 2008
Jack H. Calhoun, Arbitrator
I. Background
The American Federation of Government Employees, Council of Prisons, Local 1242 (the Union) and the Federal Bureau of Prisons (the Agency) are parties to a collective bargaining agreement that provides the basic workweek will be five consecutive days and the standard workday will be eight hours. The Union filed a grievance on June 21, 2005 alleging that the Agency had violated the agreement and applicable statutes and regulations by requiring bargaining unit employees to work on a daily basis in excess of eight hours without compensation. The Agency raised threshold procedural issues, which the parties agreed would be resolved before a hearing on the merits of the substantive issue would take place, if necessary. Evidence and argument were heard on September 14, 2006 and a decision was issued that concluded the grievance was timely filed, it did not lack specificity and that it properly invoked arbitration.
II. Issue
The issue to be resolved is whether bargaining unit employees have been required to work more than a de minimus amount of time in excess of their regular shifts without compensation performing work that is integral and indispensable to their principal work activities during the applicable statutory period, and, if so, what compensation are they due?
III. Relevant Contract Provisions
The following provision of the parties’ contract is relevant to the issue in dispute:
Article 18
The basic workweek will consist of five (5) consecutive workdays. The standard workday will consist of eight (8) hours with an additional thirty (30) minutes non-paid, duty-free lunch break. However, there are shifts and posts for which the normal workday is eight (8) consecutive hours without a non-paid, duty free lunch break.
The Local Supplemental Agreement provides at Article 18, Section P: Employees are entitled compensation in accordance with applicable law.
On August 10, 2002, the Union and Agency entered into a settlement agreement at the national level which addressed the so-called “portal-to-portal” issue. It addressed the pre-and post-shift activities performed by employees and the necessity of compensating them for such activities. The national agreement permitted employees from other, non-included institutions to pursue their own portal-to-portal claims if the institution had not eliminated the issue by making changes.
The language of the settlement agreement was incorporated into the Agency’s Human Resources Manual whose purpose was to establish times for employees working at Agency institutions and the procedures to establish practices to do so. Section 610.1 of the Human Resources Manual provides, in part, as follows:
610.1 Institution Shift Starting and Stopping Times
1. Purpose and Scope. To establish basic parameters for shift starting and stopping times for employees working at Bureau institutions and the procedures to establish these practices at all Bureau institutions.
2. Coverage. This section applies to all institution employees who are required to pick up keys or other equipment while passing through control on their way to their assigned duty post.
3. Criteria. Each institution shall have approved work schedules with shift starting and stopping times, for employees who work at the institution, to begin and end at the point employees pick up and drop off equipment (keys, radios, body alarms, work detail pouches, etc.) at the control center. Therefore, employees who pick-up equipment at the control center, shall have their shifts scheduled to include reasonable time to travel from the control center to their assigned duty post and return (at the end of the shift). If an employee arrives at the key line in a reasonable time to get equipment by the beginning of the shift, this employee is not to be considered late.
6. Scheduling Considerations
b. Due to these parameters, schedules may have to be adjusted and shifts overlapped for posts which require relief, as employees must be given time to arrive later and leave posts earlier to be at the control center on time. The length of time necessary to provide the overlap depends on the post location and the reasonable travel time to and from the control center to that post.
IV. Facts
The essential facts of this case have been derived, for the most part, from the sworn testimony of witnesses who were able to give consistent, detailed and credible testimony based on their own extensive experience at the Atwater institution performing exactly the kind of tasks required of correctional officers. Some of those witnesses were called by the Union and some were called by the Agency. Based on my evaluation of that testimony, the documentary evidence on the record and argument of counsel, I find as follows:
When a corrections officer is assigned to a post, the officer is required to follow post orders that are in each of the posts. One of the requirements of the post orders is that it is the responsibility of an officer to relieve a post in a timely manner. Officers assigned to a guard tower arrive at the institution, check in with a lieutenant and go to the tower base to be recognized by the on-duty officer who is to be relieved. That starts the shift.
Once the on-coming officer has climbed the stairs and has been admitted into the tower, the officer who is coming on shift is required to take an inventory of the keys, weapons and rounds of ammunition in the tower in accordance with the post orders and accompanying inventory sheets. He must also receive any pertinent information regarding the previous shift from the officer who is being relieved. All of these activities have to be completed before the on-duty officer is relieved because if he is allowed to leave before they are completed, the oncoming officer is responsible for discrepancies that may occur and he could be disciplined.
All of the rounds of ammunition in the tower have to be counted by the on-coming officer, including over 100 rounds in a box and the rounds that are in the weapons. The officer has to unload all clips, go through the box of extras, then reload the clips and place them back in the weapons before the other officer can leave. On average the total time it takes to perform the pre-shift activities is 30 minutes. In order to accomplish the required pre-shift work and be able to relieve the off-going officer at 4:00 p.m. the on-coming officer must be at the tower by 3:30 p.m. or 30 minutes prior to the beginning of the on-coming officer’s scheduled shift.
Officers are expected by management to be on their posts when their shifts start and in order to fulfill the post orders and make sure they are not responsible for missing items, they have to allow enough time to get through the inventory process before starting their shift. If they are not on post when their shift starts, they are considered absent without leave. The entire process of changing shifts at a tower takes about 30 minutes. And if an officer’s shift starts at 4:00 p.m., the officer would have to be at the tower by 3:30 p.m. in order to relieve the outgoing officer at 4:00 p.m., after which the incoming officer would work a full eight-hour shift. The officers are not paid for the extra time required prior to relieving the outgoing officer. Management is aware that officers are arriving prior to their shift start time in order to perform these pre-shift activities. The Agency has never paid officers for the pre-shift work, nor has it implemented an overlapping shifts program to relieve the officers of the necessity of pre-shift work.
When correctional officers are assigned a housing unit shift, they engage in necessary pre-shift activities including going to the central room to obtain a battery and detail pouch, stopping to check with the lieutenant, checking the mailbox in case post changes have been made, and if working the evening shift, retrieving mailbags.
Once the officer arrives at the assigned housing unit, the officer must perform an inventory of equipment and exchange chits with the outgoing officer, count keys for the unit, receive a briefing on inmate activity, and depending on the shift, assist in performing a count of the inmates. The institution is constructed so that each housing unit has two pods on each side with a connecting hallway. An officer is assigned to each side for each unit. At count time, the officers have to perform a double count to insure accuracy. Each officer makes a count, then they verify they have the same count, as required by the post orders. The on-coming officer often assists with the count because no one else is available.
If an officer’s shift at the housing unit begins at 4:00 p.m., the officer is expected to be on shift at 4:00 p.m. with the outgoing officer relieved at 4:00 p.m. The on-coming officer must have already waited in line, gone to the control room, picked up the equipment, checked in with the lieutenant, checked the box, walked to the housing unit, completed the inventory of equipment, received the briefing and assisted with the inmate count, when necessary.
The shift change for a housing unit takes approximately 30 minutes if an inmate count is assisted by the on-coming officer. If the on-coming officer does not assist in the count, it takes about ten minutes plus the time it takes to walk from the control room, ten to fifteen minutes. Even though the arriving evening shift officer is not required to report early in order to assist with the 3:30 p.m. count, the count would not take place if the officer did not report early. The Agency does not provide an additional officer to assist with the count and the lieutenants are aware of that fact. The lieutenants know extra officers are not available, therefore, they know the relieving officers come in early. If an officer is assigned the 4:00 shift and there is to be a 3:30 count, the officer is expected to be at the housing unit at 3:30. Officers doing such preliminary work have not been paid for such work. On-coming officers do not conduct an inmate count on the 8:00 a.m. shift.
It is not a stated requirement that the on-coming evening shift officers come in at 3:30 p.m. and assist with the stand-up inmate count; however, the Agency does not provide a second officer to do it and the on-coming officer is the only one present to assist and that officer does so. Post orders required that there be two officers present for the 3:30 stand-up count. No one in management has ever told the officers not to work the extra time before their shifts.
It can take up to 15 minutes to walk from the control room to the farthest housing unit. At times, waiting in the key line to receive equipment can take up to 15 minutes, depending on the number of officers changing shift at the same time. Additional officers have never been assigned to the control room to assist with the process in order to decrease the amount of time incoming officers wait in line. If officers are in the key line by the time their shift starts, they are not considered late.
Institution management at Atwater has been aware since at least 2002 that starting and stopping times, or “portal-to-portal” issues have existed. Officers who have received overtime pay did so because of situations other than pre- and post-shift activities, such as emergencies and handling medical related travel, except for the 40 officers who were paid overtime because they were required to report early to assist in inmate counts.
Atwater correction officers do not arrive on shift early to allow outgoing officers to leave early. The Agency derives a benefit from the time spent by the officers at pre-shift activities. The Agency is aware the officers come in early to perform the activities at issue here.
At one time, for a short time, the Agency stopped officers from entering the institution until 15 minutes prior to their shift starting time. The prohibition did not last long because it caused outgoing officers to be relieved late.
V. Summary of Union’s Position
The Union contends the Agency has failed to comply with the Master Agreement, its Human Resources Manual and federal law. The Agency committed the violations knowingly and willfully; therefore, the Union requests an award to all affected bargaining unit members the appropriate compensation for three years preceding the filing of the grievance plus interest, attorney fees and costs.
The issue in the Union’s view, is whether the employees at the Atwater Prison were required to work in excess of their eight-hour work day performing activities that were integral and indispensable to their principal work activity for which they should be compensated. By law, activities are an integral and indispensable part of employees’ principal activities if such work is necessary to the business and is performed by the employees, primarily for the benefit of the employer in the ordinary course of that business. Preliminary or postliminary activities that are integral and indispensable to an employee’s principal activity are themselves principal activities under the Portal-to-Portal Act. In order to be compensable, work of a pre-shift or post-shift activity or preparatory or concluding activity must be credited as hours of work when such work is: (1) closely related to an employee’s principal activities, is indispensable to the performance of the principle activities and (2) constitutes total time spent in such activity to be more than ten minutes per daily tour of duty or more than ten minutes per workday.
All the pre-shift and post-shift activities of the Atwater employees meet the above standard, according to the Union, inasmuch as they are all closely related to their principal activities and are indispensable to the performance of such activities. The time spent by the employees far exceeds ten minutes for each shift they work. Activities performed by housing unit officers that are indispensable and must be performed prior to relieving the outgoing officer are:
1. Waiting in line at the control tower to pick up a battery and duty pouch.
2. Reporting to the lieutenant’s office and checking the mailbox for pertinent information.
3. Traveling from the control center to the post.
4. Inventorying equipment and keys at the post.
5. Conferring with the outgoing officer as to the status of the post and activities of inmates during the shift.
Activities performed by the tower officer that are indispensable and must be performed prior to relieving the outgoing officer are:
1. Checking with the lieutenant.
2. Reporting to the tower post; waiting to be allowed in to the tower and climbing the five flights of stairs to the top.
3. Inventorying equipment and weapons.
4. Inventorying all rounds of ammunition in the weapons.
VI. Summary of Agency’s Position
The Agency contends that officers who pick up keys at the control center are on time if they are in the key line at the beginning of their shifts. Officers who do not pick up keys at the control center, exchange keys and equipment at their posts and are expected to be at their posts at the start of their shifts.
At the April 18, 2002 Labor-Management Relations meeting the Union submitted a document regarding portal-to-portal issues but provided no details, the Agency contends. At the July 18, 2002, LMR meeting the Union asked for fifteen minutes of overtime for every officer on every shift. On August 29, 2002, management asked the Union for further research. On June 10, 2005 the Union raised the portal-to-portal issue again in an informal resolution memorandum. Management responded by stating it did not mandate pre-and post-shift briefings or require staff to conduct such briefings in the administration building. On June 21, 2005, the Union filed the instant grievance.
The Agency argues that picking up a crew kit takes no more than half a second. Spare batteries are available at the front entrance and the compound officer delivers batteries to on-duty officers on request. There is no requirement that oncoming officers pick up a new battery. The time it takes to pick up a battery is de minimus as is picking up a mail bag as the officer walks by. Management specifically declared that officers were not required to check in with the lieutenant’s office prior to reporting to their posts. Post orders do not require officers to check their mailboxes before going on their posts.
The exchange of equipment and relief at a housing unit takes up to ten minutes if the relieving officer does not assist with the 3:30 count, the Agency asserts. Other employees are available to assist the day watch housing officer with the 3:30 count. The post orders do not specify that the evening watch officer must assist with the 3:30 count. The Union did not raise this issue until the hearing on the merits.
Post orders for the towers specify inventory after the officer assumes duty at the beginning of the shift. In practice most officers conduct the inventory after the departing officer is relieved. The inventory of weapons, ammunition and equipment in the towers takes no more than a few minutes. No employee has ever been investigated for missing ammunition, the Agency holds.
Management has paid overtime when appropriate, the Agency maintains. When officers are relieved late, the lieutenants approve overtime.
The Portal-to-Portal Act excludes compensation for time walking to the place of performance of the principal activity of the employee. Checking in prior to walking to one’s post does not alter the place of performance. Picking up and carrying small items along the walk to the job site does not alter the place of performance of principal activity. A brief exchange of information and inventory at the job site is not compensable. Voluntarily coming in early is not compensable, the Agency maintains.
To prevail on a claim for unpaid overtime for pre-and post-shift activity, claimants must show they engaged in preliminary or postliminary activities which is (1) an integral and indispensable part of the principal activities, (2) outside the walking, riding, traveling exclusion, and (3) more than de minimus. De minimus principal activity on the way to the job site does not trigger the start of the work day.
The Agency contends that the credible testimony of management witnesses shows that the shift changes in practice took no more than ten minutes on the average and accordingly are non-compensable. That some Union witnesses assert they took it upon themselves to undertake a rigorous inventory prior to relieving an officer in a tower in contravention of the published post orders and with no evidence that management was aware of such inventories does not establish that such voluntary work is compensable.
Management presented evidence that it provided the means for the day watch officer to obtain back up for the 3:30 count. That some evening watch officers allegedly took it upon themselves to assist in the 3:30 count does not make such voluntary work compensable. The failure to submit overtime claims for such work is evidence that such activity was either de minimus or not otherwise compensable.
VII. Opinion
The Fair Labor Standards Act, 29 U.S.C. §201 et seq. was passed by Congress to assure that covered employees were properly compensated. The Portal-to-Portal Act, 29 U.S.C §254, amended the FLSA to distinguish between principal activities and preliminary and postliminary activities. Courts that have interpreted the acts have held that principled activities are those that are an integral and indispensable part of the activities for which employees are employed. Integral and indispensable activities are those necessary to the business and are performed primarily for the benefit of the employer in the ordinary course of that business. Steiner v. Mitchell, 350 U.S. 247 (1956), Dunlop v. City Electric, Inc., 527 F.2d 394 (1976).
The regulations, 5 C.F.R. §550.112 (2001) and 5 C.F.R. §551.412 (2001), require that, to be compensable, pre-shift or post-shift activity must be closely related to an employee’s principal activities and indispensable to the performance of the principal activities. Such activities must constitute more than ten minutes per day or tour of duty.
The pre-shift duties required of Atwater corrections officers in the housing units and towers are indispensable to the performance of their principle activities and they require more than ten minutes for each shift.
There was ample credible testimony from witnesses for the Union and for the Agency that officers who work inside the institutions are required to stand in line to wait for a fresh battery; pick up crew kits, mailbags and other equipment; check in with their lieutenant; and check their mailboxes prior to reporting to their assigned posts. Such activities are not only common practice but are expected of the officers. Credible testimony supports the conclusion that the pre-shift activities of housing unit officers take 30 minutes. The need for a fresh battery for each shift is beyond question given the nature of correctional officer work among inmates. It is their lifeline. Compound officers are not always available to deliver batteries within a reasonable time.
A prime reason why the shift change at the housing units takes more than de minimus time to perform is because of a lack of staff available to assist in the inmate count. Witnesses from both sides stated, contrary to the Agency’s assertion, that there is in fact often a lack of staff to assist. As a result, oncoming officers assigned to the housing units are required to arrive at their posts early in order to assist with the inmate count.
Waiting in line at the control center to pick up a battery and duty pouch; reporting to the lieutenant’s office to check on post assignment and administrative details; traveling from the control center to the duty post; inventorying equipment and keys; conferring with the relieved officer on inmate activity and assisting with inmate count cannot reasonably be argued to be dispensable to the principal activity of a housing unit officer’s work that is performed primarily for the benefit of the Agency.
The other serious point of contention between the parties is over the time it takes to properly relieve an outgoing officer at a tower post. The Agency argues the post orders do not require both officers to remain in the tower while the on-coming officer inventories the equipment and ammunition. The post orders do require that the ammunition be inventoried and each round counted. Both Union and Agency witnesses testified that if weapons or ammunition is found missing after an officer’s shift begins, that officer will be held accountable and subject to discipline. The evidence supports the conclusion that it is normal practice for both officers to be present to perform shift change at the towers and, for that reason, the shift change takes a minimum of 30 minutes to perform properly.
The prime question here is whether correction officers at Atwater were required to work in excess of their eight-hour work day engaged in activities that are integral and indispensable to their principal work for which they should be compensated. The pre-shift activities of the officers, as discussed earlier, meet this standard inasmuch as they are all closely related to their principal activities and are indispensable to the performance of those activities. The Agency has failed to comply with the collective bargaining agreement and the law. It did so knowingly and willfully.
In summary, I find that bargaining unit employees have been required to work more than a de minimus amount of time in excess of their regular shifts without compensation performing work that is integral and indispensable to their primary work activities during the applicable statutory period. Accordingly, I will enter an award.
VIII. Award
All affected bargaining unit employees are to be paid overtime in the amount of 30 minutes per day for the three years preceding the date of the grievance and up to the time the Agency takes steps to remedy the problem.
Interest in the amount allowed by law is awarded along with attorney fees.
I hereby retain jurisdiction of this matter for the sole purpose of resolving any dispute that may arise over the implementation of this Award.