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56 FLRA No. 170
U. S. Dept. of Veterans Affairs Medical Center Huntington, West Virginia and AFGE, Local 2344 (Herzog, Arbitrator), 0-AR-3293 (Decided December 20, 2000)
The Authority found that the award directing the Agency to provide police officers paid time to change into and out of uniforms at the beginning and end of each shift was contrary to 5 C.F.R. § 551.412. The Authority noted that the Fair Labor Standards Act (FLSA), as amended, provides that activities which are preliminary to or postliminary to an employee's principal activity are to be compensated when there is an express provision of a written or nonwritten contract between the employee's collective bargaining representative and his employer. The Authority further stated that OPM regulations implementing the FLSA for federal employees are silent with respect to the collective bargaining agreement exception.
Here, the Authority noted that 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. The court held that, in barring compensation for activities described in section 551.412(b), OPM exercised its broad authority to rule out bargaining over contract terms that provide payment for these activities. Neither party addressed that case or provided any basis that it should not apply here. Consistent with the court's holding, the Authority found that the award was contrary to section 551.412(b).