48:0708(72)AR - - AFGE, Local 22 and Dept. of the Navy, Naval Base, Norfolk, Virginia - - 1993 FLRAdec AR - - v48 p708



[ v48 p708 ]
48:0708(72)AR
The decision of the Authority follows:


48 FLRA No. 72

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 22

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL BASE

NORFOLK, VIRGINIA

(Agency)

0-AR-2440

_____

DECISION

October 19, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator John Van N. Dorr III filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exception.(1)

The Arbitrator sustained a grievance, in part, finding that the Agency failed to properly compensate the grievants for work performed prior to the beginning of their shifts and for meals taken during their shifts. The Arbitrator awarded the grievants backpay for a period of 6 years prior to the filing of the grievance and directed that prospective payments be made, as appropriate. The Arbitrator denied the portion of the grievance addressing compensation for time between shifts. The Agency excepts only to the portion of the remedy that awards 6 years of backpay for failing to compensate the grievants for meal periods. For the following reasons, we will deny the Agency's exception to the Arbitrator's award.

II. Background and Arbitrator's Award

The Union filed a grievance claiming that the Agency failed to properly compensate bargaining unit police officers for duties performed prior to the beginning of their shifts, for meal periods, and for periods between shifts that were too brief to allow employees sufficient time to rest. The grievance was not resolved and was submitted to arbitration through the parties' negotiated grievance procedure. The parties stipulated the following issues were properly before the Arbitrator:

1. [Whether] [e]mployees are being required to perform duties prior to and after the scheduled beginning and ending time of their assigned shifts[;]

2. [Whether] [e]ligible employees are not being compensated for that period of the work day designated as lunch breaks[; and]

3. [Whether] [e]mployees are entitled to proper compensation when their scheduled return to duty does not provide a period sufficient enough to enable them to use the time effectively for their own purposes.

Award at 1.

As to the first issue, the Arbitrator found that the grievants were required to perform prescribed tasks in order to prepare to carry out their assignments when they reported to roll call. The Arbitrator determined that the grievants performed these tasks prior to the scheduled beginning of their assigned shifts and, as such, the time was compensable. As to the second issue, the Arbitrator determined that because the grievants were law enforcement personnel subject to section 7(k) of the Fair Labor Standards Act (FLSA), their meal time was compensable time under relevant provisions of the Federal Personnel Manual (FPM). In addition, the Arbitrator found that those grievants whose meal time was extended from 30 to 45 minutes were entitled to have that time included as part of their total daily work time and that the additional time was compensable. Finally, as to the third issue, the Arbitrator determined that the grievants had not shown that they were entitled to compensation for the period of time between shifts. In this regard, the Arbitrator found that the time available between shifts of a two-shift tour of duty was sufficient to enable the grievants to use the time effectively for their own purposes. The Arbitrator also determined that the issue as to whether the grievants were provided sufficient time when the Agency rotated shifts was not arbitrable because that portion of the grievance had not been timely filed.

The Arbitrator found that the appropriate remedy was both retroactive and prospective payment for the compensable work time. The Arbitrator found that the work the grievants were required to perform before their shifts should have been paid at overtime rates when it exceeded "straight-time hours." Id. at 32. In addition, the Arbitrator determined that the meal period should be treated as work time for the purpose of calculating overtime hours. However, to the extent that work performed prior to the shift did not constitute overtime, the Arbitrator found that such time should be compensated at the straight-time rate.

The Arbitrator then addressed the appropriate period of time for which the grievants were entitled to backpay. He rejected the Agency's contention that the backpay award should not extend beyond 2 years in accordance with 29 U.S.C. § 255, which establishes a 2-year statute of limitations for claims under the FLSA.(2) The Arbitrator agreed with the Union's contention that an appropriate period for determining backpay in this case is the 6-year period prescribed in 31 U.S.C. § 3702(b) (the Barring Act) and applied by the Comptroller General in deciding claims against the United States Government. The Arbitrator noted that a 6-year statute of limitations was found to apply to non-exempt Federal employee claims for overtime compensation under the FLSA in Transportation Systems Center, 57 Comp. Gen. 441, 443-44 (1978), and that a 6-year limitations period also appears in FPM Letter 551-15.(3) Accordingly, the Arbitrator ruled that the appropriate period of backpay for the Agency's failure to compensate the grievants for the pre-shift work and their meal periods was 6 years from the date the grievance was filed.

The Arbitrator also found that "from time to time" interruptions of the meal periods had been compensated and, further, that certain grievants consistently had received 15 minutes of time off as compensation for working through their meal periods. Award at 33. Therefore, the Arbitrator ruled that such compensation "shall not be duplicated" as part of the award. Id. In addition, the Arbitrator determined that, if the Agency's records do not cover the 6-year backpay period, the parties should agree to "a means of assuring equitable reimbursement for that period." Id. The Arbitrator retained jurisdiction over the calculation of the amount owed each individual, in the event the parties were unable to reach agreement.

III. Positions of the Parties

A. The Agency

The Agency excepts only to the portion of the remedy that awards retroactive compensation to the grievants for meal periods. Specifically, the Agency argues that the award of backpay for a period of 6 years prior to the filing of the grievance is contrary to the FLSA. The Agency asserts that the award of backpay should be limited to 2 years in accordance with the statute of limitations set forth in the FLSA at 29 U.S.C. § 255.

The Agency explains that because the Arbitrator determined that the entitlement to compensation for the grievants' meal periods was based on a violation of the FLSA, the Arbitrator was obligated to follow the statute of limitations contained in the same statute. In support of its contention, the Agency cites several claims court decisions in which a 2-year period of limitations was applied to cases under the FLSA. The Agency argues that in Acton v. United States, 932 F.2d 1464 (Fed. Cir. 1991) (Acton), the court of appeals found that the claims court "'must use the statutory source of entitlement to the payment to determine the correct statute of limitations.'" Exception at 5, quoting Acton at 1466. The Agency asserts that arbitrators must also use the statutory source of entitlement in determining the appropriate statute of limitations in calculating backpay. The Agency argues that because this case involves the FLSA, the Arbitrator should have awarded backpay for 2 years prior to the filing of the grievance in accordance with the limitations period contained in section 255 of the FLSA.

In addition, the Agency asserts that in U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, 46 FLRA 1063 (1992), the Authority recognized that the FLSA contains provisions concerning entitlement to retroactive pay that are different from the provisions of title 5 that govern retroactive pay. The Agency claims that if arbitrators can apply provisions of the FLSA that provide benefits beyond those authorized by title 5, then other provisions of the FLSA that are more restrictive than title 5, such as the 2-year statute of limitations, must be applied by arbitrators. Consequently, the Agency claims that the portion of the remedy that is based on the FLSA but ignores the statute of limitations contained in that statute is contrary to law and should be set aside.

B. The Union

The Union contends that the Arbitrator's award is not contrary to law. Initially, the Union notes that in Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990) (Carter), cert. denied sub nom. Carter v. Goldberg, 111 S. Ct. 46 (1990), the Federal Circuit held that, notwithstanding the language of section 216(b) of the FLSA, employees who are represented in units of exclusive recognition must pursue their claims for overtime compensation under the FLSA through negotiated grievance procedures. Following Carter, the Union states that the General Accounting Office (GAO) no longer resolves the pay claims of Federal employees if the employees are subject to a negotiated grievance procedure and, as here, one of the parties to the agreement objects to GAO resolving the dispute. Consequently, the Union argues that the sole avenue for Federal employees who are in recognized bargaining units to enforce their FLSA claims is through the negotiated grievance procedure.

The Union further states that in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 44 FLRA 773 (1992), the Authority held that, in view of the court's decision in Carter, arbitrators have the authority to decide FLSA issues based on the application of pertinent laws and regulations. The Union contends that the Arbitrator's obligation to consider all relevant laws and regulations in this case was also required by the parties' collective bargaining agreement. The Union asserts that section 216(b) of the FLSA provides for state and federal court jurisdiction over FLSA claims and that section 255, which contains the 2-year statute of limitations, applies only when FLSA claims are pursued in court. Therefore, the Union argues that the Arbitrator properly rejected the application of the FLSA statute of limitations in determining the recovery period of the grievants' backpay claim.

The Union further contends that, under applicable law, Federal employees can recover 6 years of backpay in FLSA actions. In support of its contention, the Union relies on FPM Letter 551-18 and decisions of the Comptroller General. Additionally, the Union maintains that in U.S. Department of the Army, Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 39 FLRA 1113 (1991), the Authority recognized that the 2-year limitations period set forth under section 255 of the FLSA does not apply to FLSA claims pursued under a negotiated grievance procedure. The Union also notes that in International Association of Firefighters, Local 13 and Panama Canal Commission, General Services Bureau, Balboa, Republic of Panama, 43 FLRA 1012 (1992) (Firefighters), reconsideration denied, 44 FLRA 954 (1992), the Authority ruled that the 6-year statute of limitations period contained in the Barring Act does not prohibit an arbitrator from awarding backpay in an FLSA action for more than 6 years prior to the date the grievance was filed.

Finally, the Union states that the Authority has held that improper denials of FLSA overtime pay constitute unwarranted personnel actions to which the Back Pay Act applies. Consequently, the Union argues that the Arbitrator in the instant case properly awarded backpay for a period of 6 years prior to the date the grievance was filed.

IV. Analysis and Conclusions

For the following reasons, we find that the Agency's exception provides no basis for finding the award deficient.

Recently, the Authority addressed the issue of compensation for overtime under the FLSA and, more particularly, whether the statute of limitations set forth therein must be applied by arbitrators. In HHS, 47 FLRA at 828-29, we upheld an arbitrator's award of backpay under the FLSA for a retroactive period of 6 years. We found that the arbitrator was not required to apply the statute of limitations set forth in 29 U.S.C. § 255. Rather, we found the arbitrator properly resolved the dispute under the parties' negotiated grievance procedure and the Back Pay Act and that such resolution was consistent with Carter. We further noted that nothing in the Back Pay Act, under which an arbitrator can award backpay to remedy "an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials" that an employee otherwise would have received, limits the period of time for which an award of backpay can be made. See HHS, 47 FLRA at 828, and cases cited therein at 828-29. Consequently, we concluded that there was no basis on which to find the award deficient under 29 U.S.C. § 255. We further found that the arbitrator's use of the Barring Act to establish the 6-year retroactive period of backpay was not deficient. We noted that while there is no requirement to apply the Barring Act, arbitrators are not precluded from doing so in fashioning their remedies.

In terms of this case, we find that the Arbitrator's award of retroactive compensation for a 6-year period is not deficient. Thus, contrary to the Agency's contention, we find that there is no law or precedent that required the Arbitrator to use the statute of limitations contained in 29 U.S.C. § 255 in resolving the grievance. Rather, the Arbitrator found, under pertinent laws and regulations, including the Barring Act, that a 6-year retroactive period for the award of backpay was appropriate. Consistent with the reasoning set forth in HHS, and the wide latitude and discretion that arbitrators have in fashioning remedies, we find no basis on which to conclude that the award is deficient. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 98, 101 (1993). Accordingly, we will deny the exception.

V. Decision

The Agency's exception is denied.

APPENDIX

29 U.S.C. § 216(b) provides, in relevant part:

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their . . . unpaid overtime compensation . . . and in an additional equal amount as liquidated damages. . . . An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. . . .

29 U.S.C. § 255 provides, in relevant part:

Any action commenced on or after May 14, 1947, to enforce any cause of action for . . . unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938 . . . .

(a) [M]ay be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued[.]

31 U.S.C. § 3702(b)(1) provides:

A claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative. The claim must be received by the Comptroller General within 6 years after the claim accrues except--

(A) as provided in this chapter or another law[.]

FPM Letter 551-18 provides, in relevant part:

2. The Comptroller General has issued a decision which holds that the filing of an FLSA claim with the Office of Personnel Management does not toll the six-year statute of limitations contained in 31 U.S.C. §§ 71a and 237. The relevant portion of this decision (B-199474, April 2, 1981) is digested in the decision's headnote as follows:

This Office has previously held that 6-year limitations period contained in 31 U.S.C. §§ 71a and 237 applies to claims arising under § 204(f) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, 204(f) (1976). Thus, where agency appeals Office of Personnel Management (OPM) FLSA compliance order to this Office, the 6-year limitations period continues to run until claim is received in this Office. Therefore, any portion of award under OPM compliance order which accrued more than 6 years prior to filing of claim in this Office may not be paid.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union also filed a supplemental submission citing the Authority's decision in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 47 FLRA 819 (1993) (HHS), which was issued after the Union filed its opposition. The Authority's regulations do not provide for the filing of suppl