58 FLRA No. 86

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Marsha J. Murphy filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.

      As relevant here, the Arbitrator awarded the grievants backpay, but concluded that they were not entitled to interest or attorney fees. For the reasons that follow, we find that the portion of the award denying the grievants interest on the backpay award is inconsistent with the Back Pay Act, 5 U.S.C. § 5596(b)(2), and we modify the award of backpay to include interest. We further find that the portion of the award denying attorney fees is inconsistent with the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b), and remand that portion of the award to the parties for resubmission to the Arbitrator, absent settlement, to determine the amount of attorney fees that is reasonable.

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency improperly failed to pay employees standby premium pay for periods of time when they were on-call immediately following a tour of duty during which they took sick leave. The grievance was unresolved and submitted to arbitration.

      The Arbitrator sustained the grievance and awarded the grievants backpay, finding that the Agency violated the parties' agreement and the FLSA by failing to pay the grievants standby pay. Award at 9. As relevant here, the Arbitrator denied the Union's request for interest on the backpay award under the Back Pay Act, finding that the parties' agreement "does not authorize the payment of interest." Id. at 8. In addition, the Arbitrator denied the request for attorney fees, finding that the Union was not entitled to fees under the FLSA, because the parties' dispute was argued before an arbitrator, rather than a court.

III.     Union's Exceptions

      The Union contends that the Arbitrator's conclusion that the grievants are not entitled to interest is inconsistent with the Back Pay Act. In addition, the Union contends that the Arbitrator's conclusion that the grievants are not entitled to attorney fees is inconsistent with the FLSA and the Back Pay Act.

IV.     Analysis and Conclusions

      The Union alleges that the award is contrary to law in various respects. The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo, and determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)); NFFE, Local 1437, 53 FLRA 1703, 1709 (1998).

A.     The Arbitrator's conclusion that the grievants are not entitled to interest is inconsistent with the Back Pay Act

      Section 5596(b)(2) of the Back Pay Act provides that interest must be paid on backpay awards that are authorized under that Act. AFGE, Local 3134, 56 FLRA 983, 984 (2000); United States Dep't of the Navy, Naval Trng. Ctr., Orlando, Fla., 53 FLRA 103, 109 (1997). An award of backpay is authorized under the Back Pay Act when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or the reduction of an employee's pay, allowances, or differentials. See United States Dep't of the Treasury, United States Customs Serv., Port of N.Y. and Newark, 57 FLRA 718, 722 (2002). The failure to pay an employee in violation of the FLSA constitutes an unwarranted personnel action [ v58 p362 ] resulting in a withdrawal or reduction of pay under the Back Pay Act, which entitles a grievant to interest under the Act. United States Dep't of Commerce, NOAA, Office of Marine and Aviation Op., Marine Op. Ctr., Va., 57 FLRA 430, 436 (2001) (NOAA).

      In this case, the Arbitrator found -- and the Agency does not dispute -- that the Agency violated the parties' agreement and the FLSA by failing to pay the grievants standby pay, and awarded them backpay under the FLSA. Despite this finding, the Arbitrator denied the Union's request for interest under the Back Pay Act. Contrary to the Arbitrator's conclusion, the Agency's action constituted an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of the grievants' pay, entitling the grievants to interest on the award of backpay under the Back Pay Act. NOAA, 57 FLRA at 436. Accordingly, we modify the award of backpay to include interest.

B.     The Arbitrator's conclusion that the grievants are not entitled to attorney fees is inconsistent with the FLSA

      Section § 216(b) of the FLSA, provides that "[t]he court . . . shall, in addition to any judgment awarded to the plaintiff [under the FLSA] allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." Accordingly, a plaintiff who prevails on a claim under the FLSA is entitled to attorney's fees under that Act. IFPTE, Local 529, 57 FLRA 784, 786 (2002).

      The Arbitrator denied the Union's request for fees, finding that attorney fees were not permitted under the FLSA because the parties' dispute was argued before an arbitrator, rather than a court. Award at 8. Contrary to the Arbitrator's conclusion, however, it is well established that statutory language permitting a court to award money damages against the federal government does not deprive arbitrators of authority to also award such damages. See AFGE, Local 987, 57 FLRA 551, 556 (2001) (Chairman Cabaniss dissenting as to other matters); NTEU, 53 FLRA 1469, 1487 (1998); United States Dep't of the Treasury, IRS, Wash., D.C., 46 FLRA 1063, 1072-73 (1992). Consistent with this principle, the Authority has repeatedly indicated that arbitrators are authorized to apply the attorney fees provision in the FLSA if the issue is properly before them. IFPTE, Local 529, 57 FLRA at 786.

      Applying the foregoing precedent, the grievants are entitled to reasonable attorney fees under the FLSA. Accordingly, we conclude that the Arbitrator's contrary conclusion is inconsistent with the FLSA. Consistent with IFPTE, Local 529, 57 FLRA at 786, we remand the portion of the award denying attorney fees to the parties for resubmission to the Arbitrator, absent settlement, to determine the amount of attorney fees that is reasonable.  [n1] /

V.     Decision

      We modify the award of backpay to provide interest under the Back Pay Act, 5 U.S.C. § 5596(b)(2). With respect to the portion of the award denying attorney fees under the FLSA, 29 U.S.C. § 216(b), we remand that portion of the award to the parties for resubmission to the Arbitrator, absent settlement, to determine the amount of attorney fees that is reasonable.

   Because an award of fees is warranted under the FLSA, we find it unnecessary to address the Union's claim that it is also entitled to attorney fees under the Back Pay Act. In this regard, we do not construe the claim as a request for double recovery for fees.