U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Office of Marine and Aviation Operations, Marine Operations Center, Norfolk, Virginia (Agency) and International Brotherhood of Electrical Workers, Local 80 (Union)

[ v57 p559 ]

57 FLRA No. 98

U.S. DEPARTMENT OF COMMERCE
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, OFFICE OF MARINE
AND AVIATION OPERATIONS
MARINE OPERATIONS CENTER
NORFOLK, VIRGINIA
(Agency)

and

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 80
(Union)

0-AR-3041
(55 FLRA 816 (1999))
(55 FLRA 1107 (1999))

_____

DECISION

September 28, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to a supplemental award on remand of Arbitrator Robert W. Foster filed by the Agency and the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7101 et seq., and part 2425 of the Authority's Regulations. The Agency and the Union filed oppositions to the other party's exceptions. [n2] 

      The Authority issued its original decision and remand order in this matter in United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Office of NOAA Corps Operations, Atl. Marine Ctr., Norfolk, Va., 55 FLRA 816 (1999), reconsideration denied, 55 FLRA 1107 (1999) (NOAA Corps Operations). [n3] 

      On remand, the Arbitrator determined that the Agency's violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., was not willful and, therefore, that a two-year statute of limitations was applicable "to all of the grievants." Award at 12. The Arbitrator also found that liquidated damages to "all grievants" from the date of the grievance or from the date of the initial arbitration award was not warranted. Id. at 15. However, the Arbitrator determined that the Agency had not established a good faith basis for the undue delay after the Authority's decision in implementing the arbitration award. Accordingly, the Arbitrator ordered the Agency to pay a 20 percent annualized addition to the computed backpay amount from December 22, 1999, until final payment to the grievants is made, as a form of liquidated damages. [n4] 

      For the reasons that follow, we deny the Agency's request that we apply a new Office of Personnel Management (OPM) regulation to the facts of this case. We conclude that the Arbitrator did not err when he determined that a two year statute of limitations in computing the award of backpay is applicable in this case. We find that the Arbitrator exceeded his authority when his award provided backpay and liquidated damages to non-grievants, and when his award included non-grievants in the determination of the statute of limitations for standby pay, and set aside those portions of the award. We also find that the Arbitrator's determination that liquidated damages should be awarded for the employer's actions after December 22, 1999 is contrary to the FLSA and is set aside. The Union's request for interest is denied.

II.     Background and Arbitrator's Award

      In the underlying grievance, the Arbitrator initially ruled that the grievants, electronic technicians who served aboard Agency ships at sea, do serve in a standby duty status while at sea and ordered the Agency to pay standby pay to the four grievants who timely filed grievances. See NOAA Corps Operations, 55 FLRA at 818. The Arbitrator denied the grievances of nine other grievants whose grievances were not timely filed. Id. at 817.

      The Authority determined in NOAA Corps Operations, that the FLSA statute of limitations, set forth at [ v57 p560 ] 29 U.S.C. § 255(a), rather than the time limits for filing a grievance set forth in the parties' agreement, governs an award of backpay for a claim brought under the FLSA. In this regard, the FLSA provides that any action begun under the FLSA may be commenced within two years after the cause of action occurred, except that the cause of action arising out of a willful violation may be commenced within three years after the cause of action occurred. The Authority also found that the FLSA provided for liquidated damages in appropriate circumstances. Because the Arbitrator did not make any finding of fact as to the issue of willfulness on the part of the Agency, the Authority remanded the matter to the parties for resubmission to the Arbitrator to determine the appropriate recovery period under 29 U.S.C. § 255(a). Similarly, in the absence of any findings in that regard, the Authority also remanded the award to the parties for resubmission to the Arbitrator for a determination as to whether liquidated damages were appropriate.

      On remand, the Arbitrator determined that, in McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988) (McLaughlin), the United States Supreme Court provided the clarifying definition of what constitutes "willful" conduct. Using that definition, the Arbitrator ruled that the Union must prove that the Agency either knew that or showed reckless disregard for whether its conduct was prohibited by the FLSA. The Arbitrator found in this connection that the Union failed to meet its burden of proof.

      The Arbitrator also concluded that the Union's assertion that the Agency failed to investigate the matter sufficiently is unpersuasive. In particular, the Arbitrator noted that an experienced labor counsel provided the Agency with a professional opinion on whether the grievants met all of the four requisites for payment of standby duty as set forth in the Code of Federal Regulations. The Arbitrator found that the cases cited therein supported her conclusion and demonstrated that she made a considerable effort to provide a well-researched legal analysis of the issue. According to the Arbitrator, the Union's argument that the labor counsel's memorandum did not cite certain cases, and that the counsel had not contacted the OPM for advice, was not dispositive. The Arbitrator also found that the Union's contention that it had additional information that should be considered was without merit because "nothing of substance .  .  . was presented by the Union." Award at 11.

      The Arbitrator concluded that the Agency's denial of the grievants standby pay was based on the good faith belief that standby pay was not warranted. The Arbitrator noted that the fact that he ultimately disagreed with the Agency on this matter, and was affirmed on appeal by the Authority, does not establish that the Agency was willful at the time that it rejected the Union's claim. Accordingly, the Arbitrator determined that the two year and not the three year statute of limitations was applicable to "all nine of the original grievants." Id. at 15

      As to the issue of liquidated damages, the Arbitrator found that the burden shifts to the Agency to show that it acted in good faith and that it had reasonable grounds for believing that its act or omission was not a violation of the FLSA. According to the Arbitrator, under NTEU, 53 FLRA 1469 (1998), the FLSA creates a presumption that an employee who is improperly denied overtime shall be awarded liquidated damages. See Award at 13. The Arbitrator determined that the evidence of record, supporting the conclusion that the Agency did not act willfully, is relevant to the question of whether it acted in good faith and had reasonable grounds when it denied standby pay to the grievants. The Arbitrator noted that a key factor in this analysis is whether the Agency took affirmative steps to investigate the applicability of the FLSA. In this regard, the Arbitrator found that the Agency consulted with counsel and reviewed the law. The Arbitrator concluded that the research memorandum and opinion of experienced legal counsel satisfied the Agency's duty to investigate the application of the FLSA and to arrive at a good faith, reasonable judgment. Accordingly, the Arbitrator further concluded that, because the Agency had acted on reasonable grounds and in good faith, the grievants were not entitled to liquidated damages during the period when their entitlement to standby pay was being disputed.

      The Arbitrator then addressed the Union's claim for liquidated damages for the period that the Agency failed to implement the award. The Arbitrator noted that the Agency's obligation is not triggered until an award becomes final. Because both parties filed exceptions to the underlying arbitration award, the Arbitrator found that award did not become final until the Authority issued its decision, on September 23, 1999. While the Arbitrator was made aware of the complicated, time-consuming calculations that are required to pay the grievants their standby pay, the Arbitrator found that five months, or longer, was not warranted. The Arbitrator concluded that 90 days would be the maximum reasonable period within which the Agency should compute the payments due the grievants. Accordingly, the Arbitrator

exercises his discretionary authority to increase the back pay [sic] due to all grievants, and all [electronic technicians] similarly situation [sic] who are [ v57 p561 ] entitled to standby pay, by 20 percent annualized from December 22, 1999 until final payment is made by the Agency.

Award at 16.

III.     Positions of the Parties

A.     The Agency

1.     Standby Pay

      The Agency excepts to the Arbitrator's determination that the grievants are owed standby pay. According to the Agency, subsequent to the Authority's decisions, 55 FLRA 816 and 55 FLRA 1107, the OPM issued a clarification of its pay regulations under both Title V and the FLSA to provide better guidance and to correct prior erroneous constructions. See 64 Fed. Reg. 69,165, 69,167, 69,180 (Dec. 10, 1999) (codified at 5 C.F.R. § 551.431(a), effective Jan. 10, 2000). The Agency asserts that because the OPM issuance "is simply a clarification of its existing regulations, rather than a change in the regulations or the issuance of new regulations, it is controlling in the instant case." Agency Exceptions at 8.

      In particular, the Agency asserts that the OPM clarification states that a finding that an employee's activities are substantially limited may not be based on the fact that an employee is subject to restrictions necessary to ensure that the employee will be able to perform his or her duties and responsibilities, such as restrictions on alcohol. consumption or use of certain medications. According to the Agency, the OPM clarification also provides that an employee is not considered restricted for "work-related reasons" if, for example, the employee remains at the post of duty voluntarily, or if the restriction is a natural result of geographic isolation. For example, the Agency states, in the case of an employee assigned to work in a remote wildland area or on a ship, the fact that the employee has limited mobility when relieved from duty would not be a basis for finding that the employee is restricted for work-related reasons. See id. at 7.

2.     Statute of Limitations in Computing Backpay

      In response to the Union's exception, the Agency argues that its actions throughout this process have been reasonable and in good faith. The Agency asserts that it sought a legal opinion from an experienced labor counsel, who researched the question and provided a written opinion in which she concluded that the facts did not support entitlement to pay for standby duty. The Agency also asserts that the Union's contention is contrary to the Arbitrator's findings of fact that the memorandum prepared by the legal counsel was appropriately and thoroughly researched. The Agency further contends that the cases proffered by the Union are distinguishable and inapposite to this case. The Agency notes that the Arbitrator found that the minutes of the parties' negotiations made no mention of the Union's allegation that it provided legal authority to the Agency regarding standby pay. Finally, the Agency asserts that the Union's exception is an attempt to convince the Authority that the Arbitrator's findings of fact are incorrect and that this does not serve as a basis for finding the award deficient.

3.     Liquidated Damages

      The Agency excepts to the Arbitrator's award of liquidated damages, for what the Arbitrator considered an over-long delay from the date of the Authority's decision in making payments to the grievants for standby pay, and contends that the award is not consistent with the liquidated damages permitted under the FLSA. The Agency maintains that the actual computations and payments are outside of its control, as its pay agent is a component of another agency. See Agency Exceptions at 19 n.12. The Agency asserts that, because the Arbitrator found it had acted in good faith and with reasonable grounds when it did not agree to standby pay, the grievants were not entitled to liquidated damages during the period when their entitlement was being disputed.

      According to the Agency, the percentage formula provided by the Arbitrator is actually an interest payment and the FLSA does not provide for interest to the employees in addition to liquidated damages. Moreover, the Agency contends that the liquidated damages payment essentially constitutes an award of punitive damages, and that punitive damages are not available as a remedy for FLSA violations by arbitrators because the Agency has not waived its sovereign immunity. [n5] 

4.     Exceeded Authority

      The Agency excepts to the Arbitrator's award and contends that the Arbitrator exceeded his authority when he included, in the coverage of his remedy of backpay and liquidated damages, similarly situated employees who had not filed grievances. See Agency Exceptions at 18 n.10 and 11. The Agency asserts that only the four grievants who timely filed grievances should be entitled to any form of relief. See Agency [ v57 p562 ] Exceptions at 15. The Agency also asserts that throughout this arbitration proceeding, all discussion, as set forth in the stipulated issue, has been limited to the grievants and did not consider other employees who had not filed grievances.

      The Agency contends that the Arbitrator exceeded his authority by concluding that the two-year statute of limitations applied to all grievants, not merely to the four grievants who had timely filed grievances. See Award at 12, 15. The Agency asserts that the Authority had not changed the determination that only four of the thirteen grievances were timely filed. The Agency argues that on remand, the Arbitrator was without authority to make any change to the determination of which grievances were timely filed.

5.     Interest

      In response to the Union's contention, the Agency argues that because this case is brought under the provisions of the FLSA, the grievants' remedy is limited to that provided for in the FLSA. According to the Agency, waivers of sovereign immunity must be expressed. The Agency asserts that the FLSA provides for backpay, liquidated damages, and attorneys' fees for successful claimants, but the FLSA does not contain a waiver of sovereign immunity for awards of interest. Therefore, the Agency contends that they are not entitled to interest.

B.     The Union

1.     Standby Pay

      In response to the Agency's argument, the Union contends that the Agency asked OPM to change its standby pay regulations and that OPM issued the changed regulations without notifying the Union. The Union states that it has asked the Merit Systems Protection Board to review the regulations and determine whether they are improper.

      The Union also asserts that the regulations are immaterial to this case because they were issued two years after the Arbitrator's initial award. The Union asserts that the Arbitrator found that the grievants were required to remain in a constant state of readiness and that the Authority deferred to this factual finding. According to the Union, for the Agency to rely on regulations not even in effect until over two years after the initial award in this case was issued, when the sole issue was the remedy to be applied, is a "bad faith attempt" to contest the factual findings already made by the Arbitrator and confirmed by the Authority. Union Opposition at 3.

2.     Statute of Limitations in Computing Backpay

      The Union excepts to the Arbitrator's award and contends that a three year statute of limitations should be applicable here because there is compelling evidence of the Agency's willful violation and reckless disregard of whether its conduct was prohibited by the FLSA. According to the Union, at no time did the Agency investigate the facts or review records which would have established that the employees were in a constant state of readiness. The Union also asserts that the Agency never contacted OPM or the Department of Labor to determine if it was in violation of the FLSA.

      The Union argues that the Arbitrator's determination, that the two year statute of limitations should apply, hinged entirely on the labor counsel's memorandum. The Union asserts that the memorandum was not an unbiased or complete opinion on the issue of standby pay because it failed to include references to key cases on the issue, and because it did not seek or include advice from OPM or the Department of Labor.

3.     Liquidated Damages

      The Union excepts to the Arbitrator's failure to award liquidated damages for the entire recovery period, i.e. for the two year statute of limitations period prior to filing the grievances and the period after that until issuance of the Authority's decision plus 90 days for calculation of the amount owed, and his failure to award an amount equal to the amount owed. The Union reiterates its contention that the Agency did not act in good faith and reasonableness because the labor counsel's memorandum failed to mention key cases and because the Agency did not contact the OPM or the Department of Labor for advice.

      The Union asserts that the Agency's failure to pay the standby pay to the grievants after the Authority's decision issued also demonstrates that the Agency was not acting in good faith.

      Finally, as to the liquidated damages ordered by the Arbitrator, the Union contends that the Arbitrator misconstrued the FLSA in not awarding full liquidated damages. The Union argues that the Arbitrator should have awarded liquidated damages equal to the unpaid overtime compensation to the grievants, instead of the 20 percent set forth in the award.

4.     Exceeded Authority

      The Union does not specifically address this exception. [ v57 p563 ]

5.     Interest

      The Union excepts to the Arbitrator's award and contends that the grievants are entitled to interest under the Back Pay Act, 5 U.S.C. § 5596, for any period of time for which liquidated damages are not applicable. The Union acknowledges that the grievants cannot receive liquidated damages and interest, but requests interest for any period when liquidated damages are not paid. See Union Exceptions at 13.

IV.     Analysis and Conclusions

A.     Agency Exception on Standby Pay

      The Authority has consistently held in arbitration cases that it will resolve those cases based on the state of the law at the time the cases are decided. See United States Dep't of the Army, United States Army Reserve Personnel Ctr., St.Louis, Mo., 49 FLRA 902, 903 (1994); Panama Canal Commission, 39 FLRA 274, 277 (1991). Moreover, it is a commonly accepted principle of administrative law that, absent manifest injustice or statutory direction or legislative history to the contrary, an administrative agency "'must apply the law in effect at the time a decision is made, even when that law has changed during the course of a proceeding.'" United States Dep't of the Navy, Mare Island Naval Shipyard, Vallejo, Cal.,49 FLRA 802, 811 (1994), (quoting Aaacon Auto Transport, Inc. v. ICC, 792 F.2d 1156, 1161 (D.C. Cir. 1986)).

      In our original decision in this case, 55 FLRA 816, the Authority decided the case based on the law at that time applied to the Arbitrator's findings of fact. That underlying decision is not before us. Only the issues remanded to the parties for resubmission to the Arbitrator--the statute of limitations for recovering standby pay and whether liquidated damages were warranted--are before the Authority. Moreover, contrary to the Agency's assertion that the OPM issuance is merely a clarification, the new OPM regulations are revisions to Government-wide regulations promulgated by OPM to implement the FLSA. See 64 Fed. Reg. at 69,180; 5 C.F.R. § 551.431(a). Because the new regulations were issued after the arbitration award and after the Authority's original decision and decision on reconsideration, we find that the new regulations are not applicable here.

      Finally, to the extent that the Union's opposition seeks to have the regulation found "improper," if the validity of these OPM regulations is in question, the challenge should be made by an interested party in another forum, such as a Federal district court. See NTEU v. Devine, 577 F. Supp. 738 (D.D.C. 1983), aff'd, 733 F.2d 114 (D.C. Cir. 1984).

      Therefore, we deny the Agency's exception.

B.     Union Exception on Statute of Limitations in Computing Backpay

      The Authority reviews the questions of law raised by the award and the Agency's exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) citing Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In conducting that assessment, the Authority defers to the Arbitrator's underlying factual findings. See id.

      Under 29 U.S.C. § 255(a), a cause of action may be 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.

      Upon de novo review, we find that the Arbitrator correctly analyzed the Agency's actions. The Arbitrator, to whose factual findings we defer, evaluated the record and applied the correct legal standard to those facts and concluded that the Agency's violation of the FLSA was not "willful." We agree, because the record establishes that the Agency took appropriate steps to determine whether the employees were entitled to the standby pay by having an experienced labor counsel research the issue and provide a written report. The Agency shared this report with the Union and the Union did not refute the research at that time. It was appropriate for the Arbitrator to rely on the fact that the Agency's actions were based on the advice of counsel. See Lopez v. Art Kraft Containers Corp., 660 F. Supp. 404, 409 (E.D.Pa. 1987), rev'd on other grounds sub nom. Minizza v. Stone Container Corp., 842 F.2d 1456 (3d Cir. 1987), cert. denied, 488 U.S. 909 (1988) (employer relied on advice of experienced labor counsel who reviewed Dep't of Labor opinion letters and contacted Dep't of Labor informally to confirm its interpretation). Accordingly, we conclude that the Union has not demonstrated that the Arbitrator's award is inconsistent with the FLSA and we deny the exception.

C     Liquidated Damages

      As set forth above, when an exception claims that an award is contrary to law, the Authority conducts a de novo review, subject to a deferential review of facts as found by an arbitrator. [ v57 p564 ]

1.     Union exception contending there was no good faith and no reasonableness

      In NTEU, 53 FLRA 1469, 1481-84 (1998), the Authority set forth a detailed explanation of the standard for awarding liquidated damages under the FLSA. The standard, set forth in 29 U.S.C. § 260, establishes a presumption that an employee who is improperly denied overtime shall be awarded liquidated damages, unless the employer shows that the act or omission giving rise to the violation of the FLSA was in good faith and that it had reasonable grounds for believing that the action or omission was not a violation of the FLSA. In applying § 260, "good faith" requires a showing that the employer subjectively acted with an honest intention to ascertain what the FLSA requires and to act in accordance with it. See id. at 1481 and cases cited therein. The "reasonableness" requirement imposes an objective standard by which to judge the employer's conduct, and ignorance alone will not exonerate the employer under the objective reasonableness test. See id. at 1482.

      The Arbitrator made a factual finding, to which we defer, that the Agency requested an experienced labor counsel to conduct research and provide a report as to the entitlement of the grievants to standby pay. The inquiries made by an employer concerning compliance with the FLSA are clearly relevant to determining whether the employer acted in good faith and reasonably. See NTEU, 53 FLRA at 1482 and cases cited therein. See also Bratt v. County of Los Angeles, 912 F.2d 1066, 1072-73 (9th Cir. 1990) (denial of liquidated damages affirmed where district court found "that an objective as possible a study was made of the job classifications for the purpose of determining presumptively exempt and nonexempt status" and where no evidence existed that employer attempted to evade its responsibilities under FLSA). The Arbitrator found that the labor counsel adequately researched and reported on her inquiries, that this information was shared with the Union and that, notwithstanding the Union's claim to the contrary, the Union provided no sufficient contradictory information to the Agency at that time. The Authority has stated that an employer is expected to seek specific advice regarding the situation of its employees, rather than general guidance about the FLSA. See id. As the Agency did seek specific advice from labor counsel, the Arbitrator's determination that the Agency acted in "good faith" and "reasonably" as required by the FLSA is not inconsistent with the FLSA. Further, the Union has provided no support for its assertion that this finding does not also apply from the date of the Arbitrator's award to the date of the Authority's decision. Accordingly, we deny the Union's exception.

2.     Agency exception contending that award of damages after December 22, 1999, does not constitute liquidated damages

      In the second part of his liquidated damages determination, the Arbitrator concluded that the Agency's delay in not paying the grievants, after the 90-day period he allowed for completing computations of the standby pay owed the grievants, was not in "good faith" and "reasonable." [n6] 

      Accordingly, the Arbitrator ordered that the Agency pay liquidated damages of 20 per cent from December 22, 1999, until payment is made.

      The FLSA provides for liquidated damages in an amount equal to the unpaid overtime compensation (standby pay, in this case). 29 U.S.C. § 216(b). Section 260 of the FLSA provides that where an employer demonstrates that the "act or omission giving rise to such action" was in good faith, the court "may award no liquidated damages or award any amount thereof not to exceed the amount specified in § 216." 29 U.S.C. § 260. The "good faith" standard addresses an employer's initial failure to pay the required FLSA entitlement, not a delay in implementing an award mandating the FLSA payment.

      Liquidated damages are not available against the United States when they are sought merely to compensate for delay or in lieu of interest. See Doyle v. United States, 931 F.2d 1546, 1550-51 (Fed. Cir. 1991), cert. denied, 502 U.S. 1029 (1992). Here the Arbitrator found that the act giving rise to the action was taken in good faith. He then found that the delay in making payment was the act giving rise to liquidated damages. Additionally, the liquidated damages awarded here, unlike a fixed amount of liquidated damages, accrue in value based upon the delay in making payment, making it subject to the Supreme Court's admonition in Library of Congress v. Shaw, 478 U.S. 310, 321-22 (1986), that "the character of or nature of 'interest' cannot be changed by calling it 'damages,' .  .  . Interest and a delay factor share an identical function."

      Accordingly, upon de novo review, the Arbitrator's determination that liquidated damages should be awarded for the employer's actions after December 22, 1999 is in error and is set aside. [n7]  [ v57 p565 ]

D.     Exceeded Authority

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. United States Dep't of Def., Army and Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996) (AAFES). While the Authority has recognized that arbitrators have broad discretion in fashioning remedies, an arbitrator does not have the power to expand the number of grievants. In the facts of this case, only four grievants remained eligible for relief after the initial Authority decision.

      The Arbitrator's award in this case encompasses persons who were not included in the grievance. The issues before the Arbitrator on remand pertained only to four grievants and there is no claim that additional issues were jointly submitted to arbitration. Therefore, the Arbitrator had authority only to resolve those issues as it pertained to the four grievants. The Arbitrator exceeded that authority when he provided relief to other similarly situated employees who were not grievants. See United States Dep't of the Air Force, Okla. City Air Logistics Ctr., Tinker Air Force Base, Okla., 42 FLRA 680, 685-86 (1991). Accordingly, we find that the portion of the award pertaining to similarly situated employees deficient.