International Federation of Professional and Technical Employees, Local 529 (Union) and United States Department of the Army, Army Corps of Engineers, Memphis District, Memphis, Tennessee (Agency)

[ v57 p784 ]

57 FLRA No. 174

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
EMPLOYEES, LOCAL 529
(Union)

and

UNITED STATES DEPARTMENT OF THE ARMY
ARMY CORPS OF ENGINEERS
MEMPHIS DISTRICT
MEMPHIS, TENNESSEE
(Agency)

0-AR-3462

_____

DECISION

May 21, 2002

_____

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 William M. Edgett 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 filed an opposition to the Union's exceptions.

      The Arbitrator found that employees who drove a government van which transported off-duty employees between their work site and another Agency facility were entitled to overtime pay under the Fair Labor Standards Act (FLSA). He awarded backpay and liquidated damages, but denied the Union's request for attorney fees.

      For the reasons that follow, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, to determine an award of reasonable attorney fees. We deny the Union's remaining exceptions.

II.     Background and Arbitrator's Award

      The grievants live on an Agency vessel during part of the year. When they receive time off, they are provided transportation in a government van to and from another Agency facility, from which they commute to their homes. The Agency did not pay the grievants, including those who drove the van, for time spent in transit between the vessel and the other facility.

      The Union filed a grievance alleging that the employees were entitled to overtime pay under the FLSA and title 5 of the United States Code (title 5) for the time spent traveling between the vessel and the other Agency facility. The parties were unable to resolve the grievance and it was submitted to the Arbitrator, where the parties did not stipulate to the issues and the Arbitrator did not formulate an issues statement.

      As relevant here, the Arbitrator found that those grievants who drove the van were entitled to overtime pay and liquidated damages pursuant to the FLSA, and that the applicable statute of limitations was three years because the Agency's failure to compensate them was willful. However, the Arbitrator denied the Union's request for "attorney[] fees and costs" because "the [award did not] favor[] the Union's position over that of the Agency." Award at 6. In this regard, he found that the Agency had conceded that those grievants who drove the van should be paid, and he determined that the Union had not prevailed on the "principle thrust" of its case -- that those grievants who were passengers in the van were entitled to compensation. [n1]  Id.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the Arbitrator exceeded his authority by failing to address whether the grievants who drove the van are entitled to compensation under title 5. Further, the Union contends that the award is contrary to title 5 because the statute of limitations is longer under title 5 than under the FLSA, and the grievants who drove the van are entitled to overtime under title 5 for the period not covered by the FLSA. The Union also argues that the Arbitrator's denial of attorney fees is contrary to the FLSA because the FLSA requires an award of fees where there is an award of "damages." Exceptions at 13.

B.     Agency's Opposition

      The Agency argues that the Arbitrator was not required to determine whether the grievants were entitled to relief under title 5 because their sole remedy was under the FLSA. With regard to the issue of attorney fees, the Agency argues that the Union was not the prevailing party because the Agency did not contest its obligation to pay the grievants who drove the van, and that an award of fees is not in the interest of justice. [ v57 p785 ]

IV.     Analysis and Conclusions

A.     The Arbitrator did not exceed his authority.

      Arbitrators exceed their authority when, as relevant here, they fail to resolve an issue submitted to arbitration. AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulation concerning the issue to be resolved, arbitrators are accorded great deference in their formulation or characterization of the issue. United States Dep't of Veterans Affairs, Fin. Ctr., Austin, Tex., 50 FLRA 73, 76 (1994) (VA, Austin). In addition, the Authority "has repeatedly held that the fact that an arbitrator's opinion does not mention an issue does not establish that the arbitrator did not consider and rule on the issue." Nat'l Air Traffic Controllers Ass'n, 52 FLRA 787, 790 (1996).

      The parties did not stipulate to, and the Arbitrator did not specifically frame, the issues to be resolved. However, the Arbitrator implicitly determined that the grievants' entitlement to compensation under title 5 was an issue before him for resolution when he stated that "[a]ll of the grievants claim that the time spent . . . in the van is compensable under Section 255(a) of the Fair Labor Standards Act[] and Title 5 of the US Code." Award at 1. See VA, Austin, 50 FLRA at 76 (arbitrator established issue for resolution by characterizing nature of dispute). In ordering a remedy only under the FLSA, we conclude that the Arbitrator also implicitly determined that no relief was warranted under title 5. Accordingly, the Arbitrator did not exceed his authority by failing to resolve whether the grievants were entitled to compensation under title 5. See Int'l Fed'n of Prof. & Technical Engineers, Local 11, 46 FLRA 893, 900 (1992) (arbitrator by implication found that agency had not violated provisions of collective bargaining agreement despite failing to set forth specific findings).

B.     The award is not contrary to the overtime pay provisions of title 5.

      The Federal Employees Pay Comparability Act of 1990 (FEPCA) amended title 5, providing, as relevant here, that federal employees who are covered by the overtime pay provisions of the FLSA are not subject to the overtime pay rates and computations established in 5 U.S.C. § 5542(a). FEPCA, Pub. L. No. 101-509, sec. 529, title II, § 210, 104 Stat. 1427, 1460 (1990) (codified as amended at 5 U.S.C. § 5542(c)) (section 5542(c)). The Office of Personnel Management (OPM) subsequently promulgated regulations implementing FEPCA. [n2]  These regulations establish that federal employees who are covered by the overtime provisions of the FLSA are entitled to overtime pay only under that statute. See 5 C.F.R. §§ 532.503(a)(1), 550.101(c). [n3]  See also United States Dep't of the Navy, Naval Sea Systems Command, 57 FLRA 543, 546 n.12 (2001) (pursuant to OPM regulations, employees covered by the FLSA receive overtime pay only under the FLSA). The regulations also establish that claims by federal employees for backpay under the FLSA are subject to the FLSA's statute of limitations. 5 C.F.R. §§ 550.804(e)(3), 551.702(a), (b) (2001). [n4] 

      The Union contends that the grievants who drove the van are entitled to overtime under title 5 for periods not within the FLSA statute of limitations because, according to the Union, 5 C.F.R. § 551.513 provides that "FLSA overtime pay shall be paid in addition to all pay to which the employee is entitled under [t]itle 5." Exceptions at 10. However, the relevant regulation actually states, in pertinent part, that "[o]vertime under [the regulations implementing the FLSA] shall be paid in addition to all pay, other than overtime pay, to which the employee is entitled under title 5." (Emphasis added) Thus, contrary to the Union's assertion, 5 C.F.R. § 551.513 is consistent with the requirement that employees covered by the FLSA receive overtime pay only under the FLSA. Accordingly, the Union has not demonstrated that the grievants who drove the van are entitled to overtime pay under title 5. [ v57 p786 ]

C.     The award is contrary to the attorney fee provision of the FLSA

      A plaintiff who prevails on a claim under the FLSA is entitled to "a reasonable attorney's fee." 29 U.S.C. § 216(b). A party "prevails" under a fee-shifting statute, such as the FLSA, if it "succeed[s] on any significant issue in litigation which achieves some of the benefit . . . sought." Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989) (Garland) (adopting "significant issue" test); Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (test applies to all cases in which Congress has authorized an award of fees to a prevailing party); Soler v. G & U, Inc., 801 F. Supp. 1056, 1059 (S.D.N.Y. 1992) (applying test to FLSA claim). See also Ellen C. Kearns et al., The Fair Labor Standards Act 1103-05 (1999). The degree of success obtained is not a consideration in determining whether an employee is a prevailing party. Farrar v. Hobby, 506 U.S. 103, 113-14 (1992); AFGE, Local 3310, 53 FLRA 1595, 1600 (1998). Consistent with this precedent, the Authority has held that an employee is a prevailing party if the employee receives "an enforceable judgment or settlement which directly benefitted [the employee] at the time of the judgment or settlement." NAGE, Local R4-6, 55 FLRA 1298, 1301 (1999) (applying standard to Back Pay Act claim) (citation omitted) (NAGE, Local R4-6).

      The Arbitrator denied fees on the ground that the Agency had "essentially conced[ed]" during the grievance process that any employee driving a government vehicle on government business was entitled to compensation. Award at 3. However, the Agency does not dispute the Union's assertion that, as of the date of the award, it had not paid the grievants who drove the van, and the Arbitrator rendered an enforceable award requiring payment. Moreover, nothing in the record suggests that the Agency conceded that it owed liquidated damages and a third year of backpay for wilfully failing to pay the drivers. Therefore, contrary to the Arbitrator's conclusion, the Union is a prevailing party. See NAGE, Local R4-6, 55 FLRA at 1301 (reversing arbitrator's determination that grievant was not prevailing party where award provided direct benefit).

      The Agency also argues that the Union is not entitled to attorney fees under the Back Pay Act, which provides fees only "in the interest of justice." 5 U.S.C. § 7701(g). However, the Agency's reliance on the interest of justice standard is misplaced. The FLSA provides an independent statutory right to attorney fees, whether or not the award satisfies the Back Pay Act's interest of justice standard. 29 U.S.C. § 216(b) (attorney fees shall be awarded to prevailing party); Unites States Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Ofc. Of Marine & Aviation Operations, Marine Operations Ctr., Va, 57 FLRA 430, 434 (2001) (FLSA provides independent statutory right to attorney fees). Thus, whether the interest of justice standard has been met is irrelevant in this case.

      Based on the foregoing, the grievants who drove the van are entitled to reasonable attorney fees.

V.     Decision

      We remand the portion of the award denying the Union attorney fees to the parties for resubmission to the Arbitrator, absent settlement, to determine reasonable attorney fees. We deny the remaining exceptions.



Footnote # 1 for 57 FLRA No. 174

   The Union does not except to the Arbitrator's determination that the passengers in the van are not entitled to overtime pay.


Footnote # 2 for 57 FLRA No. 174

   The Union does not challenge the validity of the OPM regulations and, in any event, the Authority is not empowered to pass judgment on the validity of them. United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 1009, 1013 (2000).


Footnote # 3 for 57 FLRA No. 174

   As relevant here, 5 C.F.R. §§ 532.503(a)(1) and 550.101(c) provide:

532.503(a)(1) Employees who are non-exemp