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57 FLRA No. 77
U.S. Dept. of Commerce, National Oceanic And Atmospheric Administration Office of Marine and Aviation Operations, Marine Operations Center, Virginia and International Brotherhood of Electrical Workers, Local 80 (Gernshenfeld, Arbitrator), 0-AR-3329 (Decided July 24, 2001)
Two grievances were filed concerning whether the Agency improperly exempted the grievant from overtime coverage under the Fair Labor Standards Act (FLSA). The Arbitrator sustained the first grievance and ordered, as a remedy, overtime pay for two years retroactively from the date of the grievance and prospectively until such time as the grievant's duties were changed at the rate of time and one-half less previous payments. He also awarded reasonable attorney fees under the Back Pay Act; but he determined that interest and liquidated damages were not appropriate. The Arbitrator found the second grievance to be untimely and thus nonarbitrable.
The Authority remanded the attorney fees, liquidated damages, and interest portions of the award to the parties for resubmission to the Arbitrator for clarification and/or reconsideration consistent with this decision.
First, the Authority found that the Arbitrator's finding that the grievant was nonexempt under the FLSA was not contrary to 5 C.F.R. § 551.206. Secondly, the Authority found that the Arbitrator's comments that the Agency was free to restructure the grievant's duties, and that the effect of such restructuring was subject to the grievance procedure in the future were not contrary to the right to assign work and did not exceed the Arbitrator's authority.
As to the award of attorney fees, the Authority concluded that a remand was necessary to clarify the award of attorney fees. The Authority found that the Arbitrator did not set forth specific findings or provide any reasons as to why the grievant was entitled to reasonable attorney fees under the Back Pay Act, nor did the Arbitrator, in light of his determination that the grievant was entitled to statutory overtime under the FLSA, explained why attorney fees were not appropriate under the FLSA. The Authority noted that on remand, the Arbitrator should explain the statutory and factual basis for any award of reasonable attorney fees.
Additionally, the Authority concluded that a remand was also necessary for the Arbitrator to address the issue of liquidated damages. In this case, the Arbitrator found that the Agency violated the FLSA by failing to pay the grievant the proper overtime based on his performance of nonexempt work. Although the Arbitrator determined that the Agency's action was not willful as it concerned the appropriate statute of limitation for the recovery of back pay, he did not address the issue of liquidated damages. Section 260 establishes a presumption that an employee who is improperly denied overtime is entitled to liquidated damages, unless the employer rebuts the presumption as discussed above. Therefore, the Arbitrator erred by concluding that he could not take any action with respect to liquidated damages in this case. Because the Arbitrator did not address liquidated damages for the period covered by his award as to the first grievance, he did not make any findings as to whether the Agency's actions were in good faith and whether the Agency had reasonable grounds for believing that its actions did not violate the FLSA.
Additionally, the Authority also found that even if the Arbitrator denied liquidated damages, interest may be awarded under the Back Pay Act. As to the second grievance, the Authority concluded that the award did not exceed the Arbitrator's authority, failed to draw its essence from the parties' agreement, nor was contrary to law.