Most recently, in performing an assignment for one of the labor unions that we represent, we came across the following Grievance Arbitration Decision from the State of Florida. The case analyzes some very important “portal to portal” and “shift overlap” issues in the field of Corrections and should be reviewed by Union Locals to determine if the findings have any applicability to their particular situations in the various penal institutions that they work in through out the State of New Jersey. The arbitration decision was rendered on November 14, 2012, and involved the American Federation of Government Employees, National Counsel of Prisons Local 1570 and United States Department of Justice, Federal Bureau of Prisons. The case revolved around a penal institution in Tallahassee, Florida, and the decision bears the Federal Mediation and Conciliation Services docket number FMCSNO10-54593. A link to the actual decision can be found by clicking on the docket number above.

In this case, there were two relevant bodies of law that were controlling. The first was the contractual agreement between Management and the Corrections Officers Union and the second was the Fair Labor Standards Act (hereinafter referred to as the “FLSA”).

In this case, the Union filed the grievance alleging that the government was in violation of the FLSA, 29 U.S.C. § 207(a), and the master agreement or Collective Bargaining Agreement when it required correctional officers scheduled on the evening watch (4:00 p.m. to 12:00 a.m.) and morning watch (12:00 a.m. to 8:00 a.m.) to perform activities prior to the beginning of their shift and after the end of their shift without compensation. In its post hearing briefs, the Union contended that all Correctional Officers at FCI Tallahassee assigned to all posts on morning watch and evening watch preformed uncompensated pre-shift and post-shift work due to an absence of overlap between shifts and should therefore receive fifteen (15) minutes of overtime for all shifts worked from a period of time three (3) years prior to the filing of a grievance on January 22, 2010. The Union further contended that the Federal Government must compensate its employees for all hours worked regardless of whether it “suffers or permits” the work to be performed and in this case it “suffered or permitted” employees to work when they had actual constructive knowledge that pre-shift and post-shift work was being performed and did nothing to prevent its performance. Therefore, any officer on evening watch and morning watch should be entitled to compensation from the moment they performed the first integral and indispensable activity until they performed the last activity that is integral and indispensable to the performance of his or her job duties. 

The testimony and evidence presented in the case lead the Arbitrator to conclude that the Federal Government knew or should have known that it had been necessary for officers on morning watch to come in early and officers on evening watch to stay late due to the pre-shift and post-shift activities they have been required to complete during the time frame that involved this grievance. The Arbitrator further concluded that the Federal Government violated its own policy in the human resource manual by failing to take any action to adjust the evening and morning watch shift starting and stopping times to solve the problem that they were aware of. As a result thereof, the Arbitrator found that the Federal Government willfully and intentionally ignored the pre-shift and post-shift work performed by all Correctional Officers assigned to all posts on the evening and morning watch and this violation of the FLSA required the period of calculation for the back pay remedy to begin three (3) years prior to January 22, 2010, the date the grievance was filed. Thus, all past and present Correctional Officers who worked the twenty four (24) hour correctional post at FCI Tallahassee on both morning watch and evening watch were entitled to be paid for fifteen (15) minutes at the appropriate overtime rate including interest allowed for by law from the period of January 23, 2007 to January 22, 2010. Furthermore, the Arbitrator also found that the Federal Government willfully and in bad faith violated the FLSA because they were aware that this practice was taking place regularly and on an ongoing basis. As a result thereof, the Federal Government was liable for liquidated damages and reasonable attorneys’ fees and expenses. We hope this information assists those Corrections Locals that may face similar issues as the ones arbitrated in Florida on a day to day basis.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Frank M. Crivelli Frank M. Crivelli

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state…

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state, county and local law enforcement officers, firefighters and EMS workers.

Mr. Crivelli specializes his individual practice in collective negotiations.  Over the past twenty (20) years, Mr. Crivelli has negotiated well over one hundred (100) collective bargaining agreements for various state, county, municipal and private organizations and has resolved over thirty-five (35) labor agreements that have reached impasse through compulsory interest arbitration.  Mr. Crivelli routinely litigates matters in front of the New Jersey State Public Employment Relations Commission, the New Jersey Office of Administrative Law, third party neutrals for mediation, grievance and interest arbitration, the Superior Court of New Jersey and the United States District Court for the District of New Jersey.

Mr. Crivelli founded and created the New Jersey Public Safety Officers Law Blog ( approximately fifteen (15) years ago where he and members of his firm routinely publish blog posts regarding legal issues related to the employment of New Jersey Public Safety Officers.  The blog now contains over six hundred (600) articles and is reviewed and relied upon by thousands of public employees.  Mr. Crivelli has also published books and manuals pertaining to New Jersey Public Employee Disability Pension Appeals and the New Jersey Worker’s Compensation System. Currently, he is drafting a publication on how to Prepare and Negotiate a Collective Bargaining Agreement.  He lectures annually at the New Jersey State PBA Collective Bargaining Seminar, the National Association of Police Organization’s Legal Seminar, the New Jersey Public Employment Relations Commission Seminar on Public Employment Labor Law, the United States Marine Corps’ Commander’s Media Training Symposium and to Union Executive Boards and General Membership bodies on various labor related topics.

Prior to entering private practice, Mr. Crivelli joined the United States Marine Corps where he served as a Judge Advocate with the Legal Services Support Section of the First Force Services Support Group in Camp Pendleton, California.  While serving in the Marine Corps, Mr. Crivelli defended and prosecuted hundreds of Special and General Court Martial cases and administrative separation matters.  In addition to his trial duties, Mr. Crivelli was also charged with the responsibility of training various Marine and Naval combat command elements on the interpretation and implementation of the rules of engagement for various military conflicts that were ongoing throughout the world at that time. After leaving active duty, Mr. Crivelli remained in the Marine Corps Reserves where he was promoted to the rank of Major before leaving the service.

For the past fifteen (15) years, Mr. Crivelli has been certified as a Civil Trial Attorney by the Supreme Court for the State of New Jersey, a certification which less than two percent (2%) of the attorneys in New Jersey have achieved.  He is a graduate of Washington College (B.A.), the City University of New York School of Law (J.D.), the United States Naval Justice School, and the Harvard Law School Program on Negotiation.