The Union filed a grievance alleging that the Agency violated the Fair Labor Standards Act (FLSA)^[1] and the parties’ agreement by failing to compensate certain correctional officers for activities performed “prior to the beginning of their shift and after the end of their shift.”^[2] Arbitrator Cary J. Williams sustained the grievance and directed the Agency to compensate the officers with fifteen minutes of overtime pay, plus interest and liquidated damages, for the applicable recovery period.

 

                The substantive questions before us are whether the award: (1) is contrary to 5 C.F.R. § 551.412(a)(1) because the Arbitrator did not find that the officers spent more than ten minutes per workday performing preparatory or concluding activities; (2) is contrary to the FLSA because it awards overtime pay from the time the officers get in line to pass through security screening;    (3) is contrary to law because it grants officers both liquidated damages and interest; and (4) is contrary to the FLSA because it awards overtime pay to “all past and present correctional officers who worked . . . on morning watch and evening watch.”^[3] 

 

 

                The employees at issue here are correctional officers at a federal, minimum-security prison. The prison is staffed in three shifts – morning, day, and evening – by officers who work in the Agency’s correctional-services department. The morning shift is from 12:00 a.m. to 8:00 a.m.; the day shift is from 7:45 a.m. to 4:15 p.m.; and the evening shift is from 4:00 p.m. to 12:00 a.m. Although officers on each shift “follow[ ] the same procedures,”^[4] the morning and evening shifts do not have a fifteen‑minute overlap – the evening shift ends at, and the morning shift begins at, 12:00 a.m.

 

 

 

                Addressing those issues, the Arbitrator determined that the officers, with a caveat not relevant here, perform the following preparatory activities: (1) passing through security screening; (2) entering a secure area to receive their equipment; (3) traveling to their assigned post; and (4) exchanging equipment and information with the out-going officer. The Arbitrator determined that these activities are “basically the same for all posts when changing shifts,”^[6] and are reversed when conducted as concluding activities.

 

                The Arbitrator determined that these preparatory and concluding activities are compensable, but he did not determine the specific amounts of time that officers spent conducting these activities. The Arbitrator acknowledged that, under 5 C.F.R. § 551.412(a)(1), preparatory and concluding activities are compensable only if employees perform those activities for more than ten minutes per workday. Nevertheless, he “[a]ppl[ied] th[e] reasoning” of another arbitrator’s award that had found that § 551.412(a)(1)’s “ten[-]minute rule did not apply because overtime . . . was paid in increments of one‑quarter hour.”^[7] In this connection, he stated that “the specific time necessary to relieve each post is not critical to recovery” because the “Agency pays overtime in [fifteen‑]minute increments without setting a minimum time to qualify.”^[8] The Arbitrator also stated, at various points, that: (1) “the quickest relief posts . . . still require a minimum of five minutes or more to complete;”^[9] (2) “generally[,] the time ranged from three to ten minutes or more both on‑coming and off‑going;”^[10]   (3) “the physical layout of the institution is such that it takes at least a minimum of four or five minutes to arrive at and relieve any post;”^[11] and (4) the officers spent       “at least five or ten minutes per shift” performing compensable preparatory or concluding activities.^[12]

 

                For the reasons discussed above, the Arbitrator concluded that the Agency “suffered and permitted” officers to perform preparatory and concluding activities without compensation.^[13] He also concluded that the Agency was aware that shift hours must accommodate preparatory and concluding activities because all other shift changes – morning-to-day and day-to-evening – overlap by fifteen minutes. Consequently, the Arbitrator awarded the affected officers fifteen minutes of overtime pay per shift, plus interest and liquidated damages, for the applicable recovery period. He also directed the Agency to “adjust current [shift] hours to provide a fifteen[‑]minute overlap period for the 12:00 [a.m.] shift change similar to the 8:00 [a.m.] and 4:00 [p.m.] shift changes” (the overlap remedy).^[14]

 

 

 

                The Agency claims^[15] that the overlap remedy abrogates management’s rights to assign work, direct employees, and determine its internal-security practices under § 7106 of the Federal Service Labor‑Management Relations Statute (the Statute).^[16]  

 

 

                At arbitration, the Agency was on notice of the disputed issue and the remedies requested by the Union, including the overlap remedy.^[18] However, the Agency did not present any arguments regarding the effect that the requested relief would have on the management rights that it cites. 

 

 

 

                The Agency argues that the award is contrary to law, specifically, the FLSA, government-wide regulations, and Authority precedent.^[20] When an exception involves an award’s consistency with law, the Authority reviews any questions of law raised by the exception and the award de novo.^[21] In applying the standard of de novo review, the Authority determines whether an arbitrator’s legal conclusions are consistent with the applicable standard of law.^[22]  In making that determination, the Authority defers to the arbitrator’s underlying factual findings unless the excepting party establishes that they are nonfacts.^[23]

 

                The Agency argues that the award is contrary to 5 C.F.R. § 551.412(a)(1) because it awards overtime pay for preparatory or concluding activities that do not exceed ten minutes per workday.^[24] Authority precedent holds that an award granting employees overtime pay under the FLSA for performing preparatory or concluding activities for ten minutes or less per workday is contrary to § 551.412(a)(1).^[25] Section 551.412(a)(1) provides:

 

 

                Here, although the Arbitrator acknowledged that preparatory and concluding activities must exceed ten minutes per workday to be compensable,^[27] it is unclear whether he found that officers performed such activities for more than ten minutes per workday. At one point in the award, he “[a]ppl[ied] th[e] reasoning” of another arbitration award that had found that § 551.412(a)(1)’s “ten[-]minute rule did not apply because overtime . . . was paid in increments of one‑quarter hour”^[28] – thus implying that he may have (incorrectly) found it unnecessary to assess whether the officers performed the activities for more than ten minutes per workday. Additionally, at various points, he stated that: “the quickest relief posts . . . still require a minimum of five minutes or more to complete”;^[29] “generally[,] the time ranged from three to ten minutes or more both on‑coming and off‑going”;^[30] “the physical layout of the institution is such that it takes at least a minimum of four or five minutes to arrive at and relieve any post”;^[31] and the officers spent “at least five or ten minutes per shift” performing compensable preparatory or concluding activities.^[32] Given these findings, it is unclear whether any of the officers performed compensable preparatory and concluding activities for more than ten minutes per workday. As a result, we are unable to determine whether the award conflicts with § 551.412(a)(1).

 

When the Authority is unable to determine whether an award is contrary to law, the Authority remands the award for further findings by the arbitrator.^[33] As we are unable to determine whether the award conflicts with § 551.412(a)(1), we remand this matter to the parties for resubmission to the Arbitrator, absent settlement, for further findings.  

 

                The Agency also argues that the award: (1) is contrary to the FLSA because it awards overtime pay from the time the officers get in line to pass through security screening;^[34] (2) is contrary to law because it grants officers both liquidated damages and interest;^[35] and (3) is contrary to the FLSA because it awards overtime pay to “all past and present correctional officers who worked . . . on morning watch and evening watch.”^[36]

 

 

 

 

 

 

 

 

 

On remand, the Arbitrator could find, based on § 551.412(a)(1), that no compensation is warranted. As a result, we find it premature, at this time, to resolve the Agency’s remaining exceptions.^[37] 

 

However, if, on remand, the Arbitrator finds that the officers performed compensable preparatory or concluding activities for more than ten minutes per workday, then he should specify how much time was spent performing which activities, including security screening. We note, in this connection, that in determining whether an employee has engaged in a compensable preparatory or concluding activity, the Authority has assessed whether the activity is “an integral and indispensable part of” the employee’s principal activities.^[38] We also note that while this case was pending before the Authority, in Integrity Staffing Solutions, Inc. v. Busk (Integrity Staffing),^[39] the           U.S. Supreme Court clarified that an activity is “integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”^[40] If the Arbitrator clarifies, on remand, that officers performed preparatory and concluding activities for more than ten minutes per workday, then he should apply the Integrity Staffing standard to assess whether those individual activities are integral and indispensable activities. And, although it is premature at this time to resolve the Agency’s exception regarding liquidated damages and interest (because there may be no compensation remaining after remand), we note that Authority precedent firmly holds that employees may not recover the full amount of both liquidated damages and interest under the FLSA.^[41]

 

 

 

 

 

 

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