Social Security Administration Baltimore, Maryland and American Federation of Government Employees, AFL-CIO

[ v55 p246 ]

55 FLRA No. 43

SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
(Charging Party/Union)

WA-CA-50058
WA-CA-50573

_____

DECISION, ORDER, AND REMAND

February 26, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I. Statement of the Case

      This consolidated unfair labor practice case is before the Authority based on the parties' stipulation of facts under section 2429.1(a) of the Authority's Regulations. [n2]  The parties have agreed that no material issue of fact exists. The Charging Party, the General Counsel and the Respondent filed briefs with the Authority.

      The complaints allege that the Respondent, Social Security Administration, Baltimore, Maryland, violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with two arbitration awards. The complaint in Case No. WA-CA-50058 alleges that the Respondent violated the statute by unreasonable delay in implementing the terms of the award and by failing to comply with the remedies of the award of Arbitrator Henry L. Segal, referred to herein as "Segal," The complaint in the other case, Case No. WA-CA-50573, alleges that the Respondent refused to comply with the award of Arbitrator M. David Vaughn, referred to herein as "Vaughn."

      As described more fully below, the Regional Director entered into settlement agreements with the Respondent, in each case providing that the issue as to whether interest on liquidated damages ordered in the awards is legally required will be presented to the Authority based on a stipulation. [n3] 

      For the reasons explained below, because of the Respondent's failure to comply with the Vaughn award, in violation of section 7116(a)(1) and (8) of the Statute, we order the Respondent to pay interest on the award in that case commencing from the time when the Respondent should have complied, based on the Back Pay Act, 5 U.S.C. § 5596.

      We further find that the record in Segal is insufficient for us to determine whether the Respondent violated the Statute as alleged. For the reasons explained below, we remand that case to the Regional Director for further processing consistent with this decision.

II. Background And Stipulated Issue

A. Background

      The Union is the exclusive representative of a nationwide consolidated unit of employees of the Social Security Administration. The parties disagreed over whether certain employees are exempt from coverage of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et. seq. [ v55 p247 ] (FLSA). The Segal and Vaughn arbitrations are part of a series of arbitration awards finding illegal the Respondent's exemption of various employees from the application of the FLSA.

      The awards in this case require the Respondent to apply the FLSA to the employees wrongly exempted from coverage, and make them whole for the illegal loss of overtime pay, including backpay and, at the employees' election, either interest or "liquidated damages" as provided by the FLSA. By statute, [n4]  FLSA liquidated damages are equal to the amount of the backpay, resulting in a total recovery of twice the amount of backpay.

B. Arbitrators' Awards

1. Segal Award

      Arbitrator Segal issued his award in August 1993. He found that the Agency had illegally exempted certain employees from the FLSA, and ordered various remedies, including removal of the exemption and reimbursement for unpaid overtime work. He ordered that the reimbursement include backpay and either interest, as provided in the Back Pay Act, or liquidated damages provided under the FLSA, at the employees' option. The Authority denied the Agency's exceptions to the award on March 10, 1994. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 49 FLRA 483 (1994).

2. Vaughn Award

      Arbitrator Vaughn issued his award on January 10, 1995. He found illegal the Agency's exemption of certain other categories of employees from the FLSA, and, like Segal, ordered the Agency to remove the exemption and pay backpay and either interest as provided in the Back Pay Act, or liquidated damages provided under the FLSA, at the employees' option. There were no exceptions to Arbitrator Vaughn's award and it consequently became final and binding on February 10, 1995. See section 7122(b) of the Statute.

C. Stipulated Facts

      Immediately upon issuance of the Authority's dismissal of the exceptions to Segal on March 14, 1994, the Union demanded prompt payment of the award. It exchanged letters with the Respondent several times, and disputed the adequacy of the Agency's plan to implement the remedy. On September 27, 1994, the Respondent notified the Union that the next day it intended to implement the payments according to the Agency's plan. Stipulation, para. 13-20. However, even after further complaints from the Union, the Respondent did not begin payments until after August 1995 for at least one category of employees included in the Segal award. [n5] 

      Once Vaughn became final and binding in February 1995, the Union contacted the Respondent repeatedly, until the Respondent notified the Union in July, 1995, that it would await a decision in Social Security Administration, Baltimore, Maryland, 53 FLRA 1053 (1997) (SSA, Baltimore) before implementing payment. Id., para. 32. At the time of the settlement agreements, SSA, Baltimore was pending before the Authority. Nevertheless, in March 1996, the Respondent notified the Union that it had made certain payments. Id., para. 33.

      The Union claimed that the payments concerning both awards were inadequate, and unfair labor practice complaints alleging failure to comply with the awards were issued in Segal on May 2, 1995, and in Vaughn on October 24, 1995. Subsequently, the Regional Director approved "informal unilateral settlements," in Segal on September 5, 1995, Stipulation para. 36, and in Vaughn on February 16, 1996, Id., para. 37. In the settlements, the Respondent agreed to all of the General Counsel's terms for compliance except the one stipulated to the Authority in this consolidated case. The Respondent agreed that it would no longer fail to comply with the Vaughn and Segal awards. It agreed to make whole the employees who had improperly been exempted from FLSA overtime; to post notices indicating that it will remove the exemptions of these employees from FLSA coverage; and to abide by the procedures directed by the Authority in SSA, Baltimore[n6] 

      The issue that the Respondent agreed to submit to the Authority is whether it is obligated to pay interest on losses suffered by employees who elected liquidated damages under the FLSA, and did not receive money due them from the award as a result of the Respondent's failure to comply. In addition, the Respondent agreed in the settlement agreements to cooperate in making information available to its payroll agent permitting process- [ v55 p248 ] ing of backpay and interest or liquidated damages as required by the awards.

      On July 2, 1997, the Regional Director ordered the two complaints consolidated, and transferred the case to the Authority on the stipulated record.

D. Issue Presented by the Stipulation

      The parties stipulated that the issue before the Authority in Segal is whether interest on liquidated damages is legally required, based on "Respondent's allegedly unreasonable delay in implementing [the award]." Stipulation, para. 36. The Vaughn stipulation states that the issue is "whether interest on liquidated damages paid under the [Vaughn] award is legally required, based upon SSA's failure to timely comply with [the award]." Id., para. 37.

III. Positions of the Parties

A. Respondent

      The Respondent does not dispute the award of liquidated damages under the FLSA in the underlying arbitrations, to remedy its improper exemption of unit employees from coverage under the FLSA. Respondent's Brief at 2-3. It argues, however, that interest payments may not be assessed against the Government under the FLSA, citing Doyle v. United States, 931 F.2d 1546 (Fed. Cir. 1991), and that, therefore, interest may not be assessed for a failure to comply with an award of liquidated damages under the FLSA. The Respondent bases its argument on the assertion that the FLSA does not waive sovereign immunity for such interest.

      As the FLSA does not provide a basis for interest on damages for failure to comply with the awards, the Respondent asserts, citing Library of Congress v. Shaw, 478 U.S. 310, 314 (1986), that the only other basis for such interest would be an applicable statute that provides an express waiver. According to the Respondent, "[t]o the contrary, the interest sought by [the Union] is explicitly barred by the `no-interest' rule, codified at 28 U.S.C. 2516(a)" which states,

[i]nterest on a claim against the United States shall be allowed in a judgment of the United States Claims Court only under a contract or Act of Congress expressly providing for payment thereof (emphasis added).

Brief at 3.

B. General Counsel

      The General Counsel asserts that the Respondent's failure to comply with the arbitrators' awards should be remedied by "post-judgment interest." General Counsel's Brief at 20. The General Counsel argues that the failure to comply is an "unjustified and unwarranted personnel action" under the Back Pay Act that is separate and distinct from the underlying FLSA violation that gave rise to the awards.

      According to the General Counsel, the liquidated damages awarded by Arbitrators Segal and Vaughn were intended to compensate payees in lieu of pre-judgment interest. The General Counsel argues that the appropriate remedy for failure to comply with these awards is based on the Back Pay Act, and that employees should be made whole by receiving interest on the amounts they would have recovered had the Respondent complied with the arbitration awards. Id.

C. Charging Party

      The Charging Party states that the Back Pay Act, as amended in 1987, explicitly provides that unfair labor practice remedies shall be payable with interest. 5 U.S.C. § 5596(b)(2)(A). It states that prior to 1987, sovereign immunity precluded awards of interest, relying on Library of Congress v. Shaw. The Charging Party contends, therefore, that such interest applies to the situation here.

      The Charging Party describes the wrongful denial of FLSA overtime and the subsequent failure to comply with the awards as "two steps of illegality." Charging Party's Brief at 16. It argues that the second, independent "illegality" of failure to comply with the awards is not remedied under the FLSA, because that statute is not implicated by the failure of the Respondent to pay pursuant to a valid arbitration award.

      According to the Charging Party, under the Statute this second "illegality," the failure to comply with the awards, is "only addressed" or susceptible to be remedied by the ULP procedure. Charging Party's brief at 17. The Charging Party contends that the result of the Respondent's failure to comply with the awards "explicitly activates the interest provisions of the [Back Pay] Act." Id.

IV. Analysis and Conclusions

A. Background

      The Back Pay Act provides the standards that must be met for an "appropriate authority" to award backpay [ v55 p249 ] in an "appeal" or "administrative determination." [n7]  In order to establish entitlement to backpay under section 5596(b)(1) of that Act, the Authority has held that a moving party must establish that the aggrieved employee was affected by an unjustified or unwarranted personnel action, and that the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210 (1998). A violation of the Statute by failing to comply with an arbitrator's award constitutes an unjustified or unwarranted personnel action.

      The two complaints in this case were the subject of "informal, unilateral settlement agreements" by the Respondent, which were approved by the Regional Director. The settlement agreements were made part of the Stipulation of Facts, by which the parties submitted to the Authority the agreed upon question concerning interest.

      Under the Authority's Regulations applicable here, the Authority can decide a case based on a stipulation of facts when a regional director determines that no material issue of fact exists, and upon agreement of the parties, transfers the case to the Authority. Authority regulations § 2429.1(a). The Authority may also remand any such case to the regional director for further processing. Id. For the reasons explained below, we find in Vaughn that statements in the settlement agreement that were made part of the stipulation by the parties constitute an admission by the Respondent that it violated section 7116(a)(1) and (8) of the Statute by failing to comply with the award. On that basis, we consider whether the Respondent is required to pay interest on the funds withheld in this unjustified or unwarranted personnel action.

      We find further that the stipulation in Segal is insufficient for us to determine whether the Respondent violated the Statute, and we remand that case to the Regional Director for further processing consistent with this decision.

B. The Respondent Violated Section 7116(a)(1) and (8) of the Statute When It Failed To Comply Timely With the Arbitrator's Award In Vaughn

      Paragraph 37 of the stipulation incorporates and quotes the following portion of the settlement agreement in the Vaughn case:

[T]he parties agree that the issue as to whether interest on liquidated damages paid under the . . . award is legally required, based upon SSA's failure to timely comply with [the arbitrator's] final and binding award, will be presented to the Authority based upon a stipulation[.]

Emphasis added.

      A reasonable construction of the underlined part of paragraph 37 is that the Respondent conceded that it failed to comply timely with the award. Therefore, we take the Respondent's stipulation in paragraph 37 as an admission that it committed an unfair labor practice, which is a necessary prerequisite to the remedy question the parties ask the Authority to address.

C. A Remand of The Segal Case Is Necessary Because The Stipulated Record Is Insufficient For The Authority To Determine Whether the Respondent Committed An Unfair Labor Practice

      In the portion of the stipulation partially settling the Segal case, the Respondent did not concede that it had unreasonably delayed compliance with the award. Instead, the Respondent and the General Counsel entered into a stipulation that the Respondent "specifically denies this allegation." Stipulation, par. 34. Because the case has been forwarded to us on this stipulated record, and the stipulation does not establish a necessary element of the violation, we have no basis for concluding that the Respondent committed a violation with respect to the Segal award. [n8]  As the record before us is insufficient to determine whether the Respondent violated the Statute as alleged, we remand the case to the Regional Director for further processing pursuant to section 2429.1 of the Regulations. [n9]  [ v55 p250 ]

D. The Respondent Is Required By the Back Pay Act To Pay Interest For Its Failure To Comply Timely With the Award In Vaughn

      The Back Pay Act provides a basis for recovery for an employee who is found to have been "affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of . . . the pay, allowances, or differentials of the employee[.]" 5 U.S.C. § 5596(b)(1). Such an employee is entitled to receive, among other things, "an amount equal to all or any part" of the lost benefits. Id. These amounts are payable with interest. 5 U.S.C. § 5596(b)(2).

      In Vaughn, the Agency committed an unfair labor practice by failing to comply with the Arbitrator's award. As we found in Part B, above, the Agency has conceded that its delay was unreasonable, arguing only that no payment of interest is required under the FLSA. The time that the award became final and binding--in this case thirty days after service of the award, no exceptions having been filed within that time--constitutes the point when the delay became unreasonable.

      The Respondent's failure to comply with the Arbitrator's award deprived the employees of use of their overtime pay and liquidated damages recovered under the FLSA and constituted an unwarranted and unjustified personnel action. See Letterkenny Army Depot, 35 FLRA 113, 127 (1990) (unlawful discrimination which formed basis of the unfair labor practice constituted the unjustified or unwarranted personnel action). The Respondent does not argue that liquidated damages are not contained in the broad definition of pay, allowances or differentials. 5 C.F.R. § 550.803. But for such action, the grievant would not have suffered the withdrawal or reduction. This satisfies the requirements of the Back Pay Act that there be a causal relationship between the unjustified or unwarranted personnel action and the affected employees' loss. Therefore, as more fully explained below, an award of interest on the FLSA liquidated damages payments is justified in the circumstances of this case.

      The Respondent's sole defense is that because the FLSA provides the basis for the monetary payments awarded by the Arbitrator, any determination about entitlement to interest due to delay in making those payments also must be based on the FLSA, which makes no provision for interest.

      As correctly argued by the Respondent, an allowance of interest on a claim against the United States requires an explicit waiver of sovereign immunity by Congress. See Zumerling v. Marsh, 783 F.2d 1032, 1034 (Fed. Cir. 1986) (Zumerling). See also Library of Congress v. Shaw. The court in Zumerling held that the FLSA contained no such explicit waiver, and found no other federal statute that would permit the payment of post-judgment interest in that case. [n10]  The Respondent also relies on Doyle v. United States, supra. However, neither Doyle nor Zumerling considered whether the Back Pay Act, which was amended in 1987, provides a waiver of sovereign immunity. [n11]  It is well established that the requisite express waiver of sovereign immunity not contained in a given statute can be supplied by a separate statute. Brown v. Secretary of Army, 918 F.2d 214, 216 (D.C. Cir. 1990), cert. denied, sub nom. Brown v. Stone, 502 U.S. 810 (1991), citing Loeffler v. Frank, 486 U.S. 549 (1988).

      As noted by the Charging Party, the Back Pay Act explicitly provides that unfair labor practice remedies shall be payable with interest. 5 U.S.C. § 5596(b)(1) [ v55 p251 ] and (2)(A). This operates as an explicit waiver of sovereign immunity, which has been held to operate in cases covered by the Back Pay Act. Ward v. Brown, 22 F.3d 516, 520 (2nd Cir. 1994). At least one court has indicated that interest is payable on federal FLSA claims, as long as it does not duplicate the payment of liquidated damages. Parker v. Burnley, 703 F.Supp. 925, 927 (N.D.Ga. 1988). [n12] 

      The amount of recovery due the employees as a result of their incorrect classification by the Respondent as FLSA-exempt employees was based on the FLSA. The Respondent has conceded its incorrect classification. When the Respondent failed to make the proper payments under the Vaughn award, which has herein been determined to be an unfair labor practice, the employees suffered further monetary losses because they were deprived of the use of that money. The remedy for this new violation by the Respondent, the withholding of the payment awarded by the Arbitrator to remedy the Respondent's incorrect classification of unit employees, is determined independent of the FLSA. The Back Pay Act, including its interest provision, is the appropriate basis to remedy the violation. [n13] 

      We conclude, therefore, that interest for the Respondent's failure to comply with the Vaughn award of liquidated damages under the FLSA is consistent with the Back Pay Act.

V. Order

      Pursuant to section 2423.41 of the Authority's Regulations [n14]  and section 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Baltimore, Maryland, shall:

      1. Cease and desist from:

      (a) Failing and refusing to fully comply with the arbitrators' award issued by Arbitrator M. David Vaughn on January 10, 1995 which became final and binding on February 10, 1995.

      (b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

      (a) Fully comply with the January 10, 1994 arbitration award as agreed by the parties in the stipulation in Case No. WA-CA-50573, in conformity with procedures set out by the Authority in its decision in Social Security Administration, Baltimore, Maryland, 53 FLRA 1053 (1997), including payment of interest assessed as provided in the Back Pay Act at 5 U.S.C. § 5596(b)(2)(A) and (B), with interest commencing from the date the award became final and binding, thirty days after service of the award.

      (b) Post at all of its facilities where bargaining unit employees are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Administrator, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

      (c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Washington Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

IT IS FURTHER ORDERED that Case No. WA-CA- 50058 be remanded to the Regional Director for further processing consistent with the decision. [ v55 p252 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Social Security Administration, Baltimore, Maryland, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to fully comply with the arbitrator's award issued by Arbitrator M. David Vaughn on January 10, 1995 which became final and binding thirty days after service of the award.

WE WILL NOT in any like or related manner interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL fully comply with the January 10, 1994 arbitration award as agreed in the stipulation in Case No. WA-CA-50573, in conformity with procedures set out by the Authority in its decision in Social Security Administration, Baltimore, Maryland, 53 FLRA 1053 (1997), including payment of interest assessed as provided in the Back Pay Act at 5 U.S.C. § 5596(b)(2)(A) and (B), with interest commencing from the date the award became final and binding.

      ______________________
(Activity)

Dated:_________ By:_____________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington Regional Office, whose address is: Tech World Plaza, 800 K Street, NW, Suite 910, Washington, D.C. 20001 and whose telephone number is: 202-482-6700.


Member Wasserman, concurring in part and dissenting in part:

      I agree with my colleagues' finding that the Respondent is required to pay interest for its failure to comply with the Vaughn arbitration award. However, I would reach the same conclusion in regard to the award in Segal, because I view the stipulated record as sufficient to find that the Respondent committed an unfair labor practice by failing to comply with the award in that case.

      Despite the Respondent's denial that it violated the Statute by failing to complying with Arbitrator Segal's award, the unilateral settlement agreement of September 5, 1995, also contains and refers to, among other things, Attachment B, signed by both parties and the General Counsel on August 15, 1995. Attachment B provides that "[e]ach party [in Segal] . . . agrees to be bound and comply with the final resolution and remedy found by the . . . Authority" in a pair of arbitration compliance unfair labor practice cases then before Judge Arrigo, and since reviewed by the Authority in SSA, Baltimore. In SSA, Baltimore, the Authority affirmed the Judge's findings, on facts and allegations substantially similar to this case, that this Respondent violated the Statute by failing to comply with the arbitrator's award at issue in that case.

      Parties may make a stipulation to depend on the outcome of another action. Thus, parties to a suit may generally enter into a valid agreement that the judgment or decree in that suit shall be the same as, or determined by the judgment or decree in, another which is of the same character and involves the same issues or interests. 73 Am. Jur. 2d Stipulations § 19 (1974). Further, a party may be estopped by such an agreement. Id.

      The Respondent agreed to be bound by the final resolution in SSA, Baltimore, which found an unfair labor practice. SSA, Baltimore was limited to allegations that are mirrored in paragraph 16 of the complaint in this case, but I note that paragraph 15 of the complaint essentially incorporates the allegations of paragraph 16, while framing them in terms of "delay". Paragraph 15 states

Since March 1994 and continuing to date, the Respondent has engaged in an unreasonable delay in implementing the terms of Segal III described in paragraphs 11, 12 and 13, above. [ v55 p253 ]

Complaint, para. 15. Paragraphs 11, 12, and 13 include the same points incorporated in paragraph 16, which were made subject to the disposition of SSA, Baltimore . For example, paragraphs 12(d) and 12(e) of the complaint address the reimbursement of overtime in accordance with the procedures imposed by section 3(C) of the Segal II decision, to be paid to affected employees for "suffered or permitted" overtime. Paragraph 16(c) alleges that the Respondent

unilaterally impos[ed] arbitrary calculations for "suffered or permitted" overtime without following Arbitrator Segal's minimum guidelines set forth in section 3(C) of Segal II and incorporated by reference into Segal III.

Complaint, para. 16(c). The Respondent agreed to be bound by the outcome in SSA, Baltimore with respect to "the factual and legal issues contained in paragraph 16(a) through 16(d)of the complaint." Stipulation, Attachment B. para. 1. The determination in SSA, Baltimore that the Agency failed to comply with the procedural requirements for overtime calculation, and the adoption of that determination for this case, incorporate and address the "delay" allegation in paragraph 15 pertaining to the same calculation. That is, the conclusion that there was a failure to comply with a certain aspect of the Segal III award subsumes the allegation regarding the alleged delay as to the same aspect. Therefore, in Segal, I would conclude that the Respondent has stipulated that it committed an unfair labor practice by failing to comply with the Arbitrator's decision.

      Moreover, even if the stipulation were viewed as inadequate to support a finding that the Respondent conceded it committed an unfair labor practice, I would find that the undisputed facts of the stipulated record as a whole are sufficient to establish a violation.

      The nature of the violation alleged is a failure to comply with a final and binding arbitrator's award, as required by section 7122(b) of the Statute. An agency that fails to comply timely violates section 7116(a)(1) and (8). United States Department of the Treasury, Internal Revenue Service, Austin Compliance Center, Austin, Texas, 44 FLRA 1306, 1313 (1992). The Authority will determine whether a respondent acted promptly in light of all the facts and circumstances, or engaged in dilatory tactics. U.S. Department of Veterans Affairs, Medical Center, Allen Park, Michigan, 49 FLRA 405, 405-6, 424 (1994); U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Region IV, Miami, Florida, 37 FLRA 603, 611 (1990) (Customs Service).

      The record in Segal shows that initial payments were not made until seven months after the award became final. In addition, the Charging Party repeatedly cautioned the Respondent to act promptly, but the Respondent ignored the requests. The record discloses no unusual or complex circumstances that would excuse the Respondent from acting promptly. See Customs Service, 37 FLRA at 611.






Footnote # 1 for 55 FLRA No. 43

   Member Wasserman's opinion, concurring in Case No. WA-CA-50573, and dissenting with respect to the majority's opinion in Case No. WA-CA-50058, is set forth at the end of this opinion.


Footnote # 2 for 55 FLRA No. 43

   The Authority revised its unfair labor practice regulations effective October 1, 1997. See 62 Fed. Reg. 46175 (September 2, 1997); 62 Fed. Reg. 40911, 40922 (July 31, 1997). The stipulation here was signed prior to the effective date of these revisions. Therefore, the section of the regulations cited above, and all other references to regulations herein unless otherwise noted, refer to the regulations applicable prior to October 1, 1997. Cf. U.S. Small Business Administration, Washington, D.C., 54 FLRA 837, 844 n.6 (1998) (hearing held before effective date of revisions); U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 54 FLRA 429, 430 n.2 (1998), petition for review filed No. 98- 1313 (D.C. Cir. Jul. 10, 1998) (exceptions filed prior to effective date of revisions).


Footnote # 3 for 55 FLRA No. 43

   The settlement agreement in Segal provided that

      [w]ith respect to [the allegation that] Respondent's alleged unreasonable delay in implementing the terms of [Segal], the parties agree that the issue as to whether interest on liquidated damages paid under [Segal] is legally required . . . will be presented to the Authority based upon a stipulation[.]

Stipulation, para. 36 quoting the settlement agreement in Segal.

      The settlement agreement in Vaughn provided that

the issue as to whether interest on liquidated damages paid under the [Vaughn] award is legally required, based [o]n SSA's failure to timely comply with Arbitrator Vaughn's final and binding award, will be presented to the Authority based upon a stipulation . . . in conjunction with the same unresolved compliance issue in Case WA-CA-50058 [Segal].

Stipulation, para. 37 quoting the settlement agreement in Vaughn.


Footnote # 4 for 55 FLRA No. 43

   29 U.S.C. § 216(b).


Footnote # 5 for 55 FLRA No. 43

   These are employees whose positions were voluntarily changed by the Respondent from FLSA exempt to nonexempt because of the grievances and arbitration proceedings. Stipulation, para. 10 and 24.


Footnote # 6 for 55 FLRA No. 43

   As pertinent here, SSA, Baltimore also involved failure by the Respondent to comply with other awards by Arbitrator Segal that found certain categories of employees were not exempt from the overtime provisions of the FLSA.


Footnote # 7 for 55 FLRA No. 43

   The Back Pay Act, 5 U.S.C. § 5596, provides, in relevant part:

(b)(1) An employee . . . who, on the basis of a timely appeal or administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority . . . to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee-
(A) is entitled, on correction of the personnel action, to receive . . .
(i) an amount equal to all or any part of the pay, allowances, or differentials . . . which the employee normally would have earned . . . if the personnel action had not occurred . . . .
(ii) reasonable attorney fees related to the personnel action . . . .
. . . .
(2)(A) An amount payable under paragraph (1)(A)(I) of this subsection shall be payable with interest. . . .

Footnote # 8 for 55 FLRA No. 43

   We do not agree with our dissenting colleague's view that we should ignore this express stipulation and find a violation based on the Respondent's agreement, in an attachment to the stipulation, to be bound by the outcome in the SSA, Baltimore case. The Respondent's agreement to be bound by the outcome in that case was expressly limited to "the factual and legal issues contained in paragraph 16(a) through 16(d) of the complaint." Stipulation, Attachment B, par. 1. The allegation of untimely compliance that is before us was contained in paragraph 15 of the complaint. See also Settlement Agreement, para. 1 (agreeing to place issue of interest on "unreasonable delay" allegation in paragraph 15 before the Authority). There is no unreasonable delay issue discussed in SSA, Baltimore and we see no basis to infer from the Respondent's concession of discrete violations that are identical to the issues considered in that case, the intent to concede other, different violations.


Footnote # 9 for 55 FLRA No. 43

   Our remand of this case is consistent with the Authority's policy of remanding cases where material issues of fact are not resolved by a stipulated record. See U.S. Department of Justice, Immigration and Naturalization Service, Chicago District Office, Chicago, Illinois, 52 FLRA 686, 692 n.6 (1996) and cases therein. Although the question of whether the Respondent committed an unfair labor practice is ultimately a legal question, the stipulated record is insufficient to reach such a legal conclusion. In remanding this case, a judge to whom the case may be submitted may make other findings that are deemed necessary or may resolve this case on any appropriate ground.


Footnote # 10 for 55 FLRA No. 43

   This differs from the private sector rule that permits post- judgment interest in FLSA claims. See 48A Am. Jur. 2d, Labor and labor Relations, § 4701 (1994); Brock v. Richardson , 812 F.2d 121 (3d Cir. 1987); Ford v. Alfaro, 785 F.2d 835 (9th Cir. 1986); Saglimbene v. Venture Industries Corp., 739 F.Supp. 1100 (E.D. Mich. 1990).


Footnote # 11 for 55 FLRA No. 43

   Doyle was decided in 1991, but did not consider the Back Pay Act amendment, apparently because the payments at issue were made before 1987. 931 F.2d at 1550-51. Moreover, the court in Zumerling notes that interest is available in district court, and implies that, if there were a waiver of sovereign immunity, interest would be available. 783 F.2d at 1035.


Footnote # 12 for 55 FLRA No. 43

   The payment of interest in this situation does not duplicate the payment of liquidated damages and is not contrary to the general rule that employee overtime pay is computed under either the FLSA or the title 5 overtime provisions, but not both. See American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 375 (1991). Interest is payable here because of the Respondent's violation of section 7116(a), not section 5545. Cf. Lanehart v. Horner, 818 F.2d 1574, 1576 (Fed. Cir. 1987) (ordering employee overtime pay rate higher than mandated by FLSA or section 5545(c) because of operation of leave statutes).


Footnote # 13 for 55 FLRA No. 43

   Because this interest is based on the Respondent's unfair labor practice, and not on a violation of the FLSA, interest begins to accrue at the time that the Respondent was obligated to pay the backpay and liquidated damages, rather than the time it committed the FLSA violation. The Respondent was obligated to pay the backpay and liquidated damages when the award became final and binding. Under section 7122(b) of the Statute, if, as in the Vaughn award, no exceptions are filed to an award during the 30-day period after the award is served on the parties, it becomes final and binding.


Footnote # 14 for 55 FLRA No. 43

   This regulatory provision, which concerns the Authority's action on judges' decisions, was amended in 1997, and was previously contained in 5 C.F.R. § 2423.29. As the amended regulation applies to all ULP compl