United States, Equal Employment Opportunity Commission, Baltimore Field Office, Baltimore, Maryland (Agency) and American Federation of Government Employees, National Council of EEOC Locals, No 216 (Union)

[ v59 p688 ]

59 FLRA No. 124

UNITED STATES
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
BALTIMORE FIELD OFFICE
BALTIMORE, MARYLAND
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL
OF EEOC LOCALS, NO 216
(Union)

0-AR-3685

_____

DECISION

February 25, 2004

_____

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 Walter H. Powell filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

II.     Background and Arbitrator's Award

      The grievant, a Grade 12 investigator, has worked in the Agency since 1993 and has "received several commendations and other awards, including monetary awards for dedicated and excellent performance." Award at 4. Moreover, prior to 2002, the grievant had received "outstanding" performance reviews, and was complimented on not only the quality of her work, but "on her dedication, enthusiasm and solution of most difficult tasks." Id.

      In January of 2002, the grievant received an email from her supervisor notifying her that she was not working at an acceptable level and informing her that she needed to improve. The grievant filed a step 1 grievance arguing that "goals and standards being established and imposed on investigators [are] contrary" to the collective bargaining agreement. Id. at 5. This grievance was [ v59 p689 ] denied and shortly thereafter the Agency placed the grievant on a sixty day performance improvement plan (PIP). This too was grieved.

      While four issues were submitted to arbitration, only two are before the Authority on exceptions:

Did the Agency have just cause to issue a performance improvement plan to the grievant? If not what is the appropriate remedy?

Id. at 11.

Did the Agency (EEOC) violate the collective bargaining agreement and the Fair Labor Standards Act (FLSA) when grievant and other employees performed (suffered and permitted) overtime since January 1999[?] If so, what is the appropriate remedy?

Id. at 20.

      With respect to the first issue, the Arbitrator determined that the Agency's action in placing the grievant on a PIP was not based on just cause because the Respondent had never been previously notified as to her work deficiencies. The Arbitrator noted that the grievant had received emails from her supervisor that were filled with "accolades" and, to the extent they were critical, merely offered "directions" and "helpful suggestions" to the grievant. Id. at 18. The Arbitrator also found unconvincing the testimony of the grievant's supervisor, who testified that she needed to rate the grievant as outstanding in one critical element and proficient in another because she thought "flattery" would motivate the grievant to improve her performance. Id. at 17. In this respect, the Arbitrator rejected the supervisor's statement that even at the time of the earlier appraisal the grievant's performance was unacceptable. Accordingly, the Arbitrator granted the grievance and determined that all record evidence of the grievant's PIP was to be expunged.

      Turning to the second issue, the Arbitrator determined that the evidence established that the "Agency knew or should have known that overtime work was being performed and did nothing to stop it or properly compensate Grievants who worked that overtime." Id. at 28. In support of this finding, the Arbitrator noted that one employee came in early to work and worked at her desk during her lunch break, and others "took work home at night, and over weekends" without compensation. Id. at 22. The Arbitrator found that the time worked was more than "de minimis" and awarded the "grievants" $1,500 each. Id. at 25, 27.

      Additionally, the Arbitrator found that the Agency owed back pay dating back three years. [n1]  Id. at 25.

      Finally, the Arbitrator determined that the Union's representative was entitled to attorney fees. The Arbitrator awarded Union counsel $10,000 "for appearances, briefs and other costs" for its "overtime" award, and $10,000 for the "PIP" award plus $5,000 in costs. Id. at 28, 29.

III.     Preliminary Matters - the Union's Motion to Dismiss

A.     Positions of the Parties

1.     Union's Motion to Dismiss

      The Union contends that the Arbitrator in this case was a "local" arbitrator under the parties' agreement of 1995, and that under that agreement any appeal of a local arbitrator's decision may only be made to a "national" arbitrator. Opposition at 2-4 (citing Article 42.08, 42.07). The Union notes that under the parties' new collective bargaining agreement, the Agency could have appealed this matter directly to the Authority under Article 42.05. However, it insists that the 1995 agreement was controlling, and that the Agency failed to "exhaust its administrative remedies." Opposition at 3. As such, it moves to have the Agency's exceptions dismissed.

2.     Agency's Response

      First, according to the Agency, as the Agency's submission is responsive to an issue first raised in the Union's opposition, the Authority should review it. See, e.g., 5 C.F.R. § 2429.26.

      Second, with respect to the merits of the Agency's response, the Agency argues that the parties have never selected or employed a national arbitrator. Moreover, the Agency notes that the Union has filed exceptions to several local arbitrators' awards directly to the Authority. Agency Reply Brief at 2.

B.     Analysis

      A waiver of a party's statutory right to file exceptions to an arbitrator's award under § 7122(a) of the Statute must be clear and unmistakable. United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian [ v59 p690 ] Head Div., Indian Head, Md., 56 FLRA 848, 850 (2000).

      The Union asserts that under the terms of its expired national agreement, the Agency was obligated to appeal the Arbitrator's award to a national arbitrator before filing exceptions with the Authority. The Union cites to Article 42.08 and Article 42.07 and states "the Agency was bound to appeal any decision by the Arbitrator Powell (if it chose to appeal) to the National Arbitrator." Union Exhibit B; Opposition at 2-3.

      However, Article 42.08 states in pertinent part: "Appeals of Local arbitration decisions may be moved to National arbitration . . . within 20 calendar days after the date of the Local Arbitrator's decision or date of any subsequent clarification of that decision." [n2]  Opposition at 2 (emphasis added). Under its terms, the contract does not show that the Agency made a clear and unmistakable waiver of its right to file exceptions of an arbitrator's award to the Authority. Rather, the provision states only that awards of local arbitrators may be appealed to national arbitration. As such, there is nothing to indicate that this process is meant to supplant the statutory right of the parties to file an appeal under § 7122(a). Accordingly, in the absence of such a clear and unmistakable waiver of the Agency's statutory right, we deny the Union's motion to dismiss.

IV.     Positions of the Parties

A.     Agency's Exceptions

1.     Exceeded Authority

      The Agency argues that the issue of overtime was not raised at either the step 1 or step 2 grievance. As such, it contends that the Arbitrator exceeded his authority under Article 41.07, which states "[a]ny issues not raised in the grievance by [s]tep 2 are waived." Exceptions at 3.

      Alternatively, the Agency argues that even if the issue of overtime was properly before the Arbitrator, the grievance should have limited any award of overtime to October 1, 2001, the alleged date that it began its "illegal . . . production quotas." Id.; see also, Agency Attachment D. As such, it again contends that the Arbitrator exceeded his authority by impermissibly extending the agreed upon time frame.

2.     Award Incomplete, Ambiguous or Contradictory

      The Agency argues that it is impossible to know which five grievants were awarded $1,500 for overtime work. In this respect, it states that the Arbitrator did not specifically name the grievants. While the Agency acknowledges that five employees work for the grievants' supervisor, it states that previous employees could be a part of this group as argued by the Union. Exceptions at 5 (citing Transcript at 731). Accordingly, the Agency argues that the award is impossible to implement. [n3] 

3.     Nonfacts

      The Agency contends that the Arbitrator's decision to find that "suffered or permitted" overtime was performed is a nonfact as there is no evidence in the record supporting this conclusion. Exceptions at 6. It contends that the Arbitrator failed to find that management "knew or had reason to believe" that overtime was being performed. Id. at 10. Moreover, the Agency characterizes any other overtime work done as merely de minimis. Id. at 6 n.7.

      The Agency also argues that the three-year time limit under the FLSA for awarding overtime is granted only where the evidence shows that a party has had a "willful disregard of the statute[.]" Id. at 11. It argues, however, that the Arbitrator never found such willful disregard, noting that the Arbitrator determined that "there was no suggestion in any of the testimony that [the grievant's supervisor] willfully violated the overtime requirement." Id. (citing Award at 26.) As such, the Agency contends that the award should only go back to 2000, not 1999, because "there is no factual basis for any finding against the Agency on this issue" and that the Arbitrator's award is contradictory in that he determined that the supervisor never "willfully violated the overtime requirement" yet found a willful violation of the FLSA. Exceptions at 11.

      Additionally, with respect to the PIP, the Agency argues that the Arbitrator's award to expunge the PIP was based on several nonfacts. Id. at 13. According to the Agency, the Arbitrator found:

(1) that PIP placement for unacceptable performance is inconsistent with the fact that [the grievant] received a performance rating of `proficient,' based in part on a rating of `outstanding' [ v59 p691 ] for one critical element, for the performance period ending September 30, 2001; that the PIP was issued absent any work ethic problem, misconduct or insubordination; (2) that there was insufficient prior notice to the [g]rievant . . . of poor performance, and (3) the Agency action was taken in retaliation for the Union's January 11, 2002, grievance.

Exceptions at 13.

      With respect to the first argument raised by the Agency above, the Agency contends that the Arbitrator's reliance on certain factors, including his findings that the grievant had not engaged in misconduct and that the grievant's prior performance appraisals were satisfactory, have ultimately no bearing on its determination that the grievant's current performance was unacceptable and warranted the PIP. Id. at 14.

      Turning to the second contention, the Agency argues that the Arbitrator incorrectly found that the Agency needed to place the grievant on notice of her poor performance prior to issuing the PIP. Id. at 15. It contends that the PIP itself is all the notice that is necessary.

      Finally, under the third contention, the Agency asserts that the Arbitrator never actually determined that the grievant was placed on a PIP in retaliation for filing the first step grievance. Id. at 16. As such, it argues that to the extent that the Arbitrator did determine that there was a "strong indication" of retaliation for the PIP, such contention is unfounded. Id. at 18.

4.     Contrary to Law

      To begin, the Agency states that, "[s]ince a PIP is not disciplinary, but rather a mechanism to provide additional supervision, it should not be subject to rescission" and that placing the grievant on sufficient notice prior to the PIP "is without any basis in Federal employment law under Chapter 43." Exceptions at 15 (citing chapter 43 of title 5 of the U.S. Code).

      With respect to attorney fees, the Agency argues that an award of $10,000 for fees and costs is contrary to the Back Pay Act and the Equal Pay Act. In this respect, the Agency argues that "[t]he Union did not provide the Arbitrator with any basis for an award of attorney's fees or for costs." Id. at 12.

      Additionally, the Agency argues that no "counsel fee petition was filed" and that the award does not reference any such petition. Id. Moreover, the Agency argues that under sections 42.02(c) and 42.05 of the parties' agreement, the Arbitrator's fees and expenses "shall be borne equally by the parties" and, as such, the Union's arbitration costs should not be shifted to the Agency. Id.

      Further, the Agency contends that the award of attorney fees and costs of $15,000 to Union counsel for the PIP issue is contrary to the Back Pay Act because there has been no showing that the grievant's placement on the PIP resulted in a loss of "pay, allowances, or differentials." Exceptions at 18-19 (citing AFGE Local 216, Nat'l Council of EEOC Locals, 42 FLRA 319 (1991)). The Agency notes that in the absence of the Back Pay Act being applicable, there has been no waiver of sovereign immunity and any monetary award would be prohibited. Id. (citing United States v. Testan, 424 U.S. 392 (1976)).

B.     Union's Opposition

1.     Exceeded Authority

      The Union argues that in the absence of a "stipulation by the parties, arbitrators are accorded substantial deference in the formulation of issues to be resolved in a grievance." Opposition at 9. As such, it argues that the Arbitrator did not exceed his authority.

2.     Award Incomplete, Ambiguous or Contradictory

      The Union argues that the decision is not so incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. Id. at 10.

3.     Nonfacts

      The Union contends that the facts relied upon by the Agency were disputed at the hearing and that, accordingly, the Arbitrator's award is not deficient because of a nonfact. Id. at 7-8 (citing United States Dep't of the Air Force, Lowry Air Force Base, Denver, Co., 48 FLRA 589, 594 (1993) (Lowry).

4.     Contrary to Law

The Union states:
The Arbitrator found that the Union argued for a three year backpay period under the FLSA. The Arbitrator also found facts supporting such a finding of willfulness. His Award reflected the willfulness and should be supported.

Opposition at 11.

      Additionally, the Union states, "the Arbitrator's findings regarding attorney fees - although bare bones - [ v59 p692 ] are warranted by the FLSA and [the] Back Pay Act." Opposition at 11. Additionally, the Union contends that if any of the exceptions, including this one, are supported, this matter should be remanded to the Arbitrator to make additional findings. Id., (citing NLRB, 44 FLRA 1223 (1992).

V.     Analysis and Conclusions

A.     The Arbitrator Did Not Exceed His Authority

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issue is accorded substantial deference. AFGE, Local 916, 50 FLRA 244, 246-47 (1995) (Local 916).

      Moreover, an arbitrator's determination regarding the timeliness of a grievance constitutes a determination regarding the procedural arbitrability of that grievance. See AFGE, Local 1501, 56 FLRA 632, 636 (2000); United States Dep't of Def., Dependents Sch., 55 FLRA 1108, 1110 (1999) (Dependents Sch.). An arbitrator's determination as to procedural arbitrability may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. See id. Such grounds include arbitrator bias or where the arbitrator has exceeded his or her authority. See id.

      The Agency, in order to support its argument, submitted with its exceptions both the Union's first step grievance (attachment E) and the Union's second step grievance (attachment D). The Agency argues that the Arbitrator, in the absence of finding that it implemented an "illegal critical element establishing production quotas and standards" was precluded from addressing any issue of overtime. Exceptions at 3. However, for the reasons below, we disagree.

      In the second step grievance, the Union specifically stated that it was requesting "payment of any and all overtime wages for investigators in [the supervisor's] unit who worked in excess of their regularly scheduled work hours to comply with the illegal critical element[.]" Attachment D. Furthermore, while the Arbitrator found that the Agency had not implemented an "illegal critical element," this does not mean that the Arbitrator was thus precluded from addressing the underlying issue of unpaid overtime.

      Moreover, while the Agency claims that the Arbitrator's review of overtime pay could only date back to October, 2001, the date the alleged illegal critical element was implemented (See Union's step 2 grievance - Agency Attachment E), the Authority defers to the Arbitrator's framing of the issue. See, e.g., Local 916, 50 FLRA at 246-47. In framing this issue, the Arbitrator specifically noted that the overtime in question dated as far back as 1999. As such, the Agency has not shown that the Arbitrator exceeded his authority.

B.     The Award Is Incomplete, Ambiguous or Contradictory

      For an award to be found deficient as incomplete, ambiguous, or contradictory, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award are too unclear or uncertain. See AFGE, Local 1843, 51 FLRA 444, 448 (1995).

      The Arbitrator determined that five grievants should receive $1,500 in overtime pay. Award at 30. Moreover, the Arbitrator indicated that the individuals entitled to such overtime pay were "named in this action or part of [the grievants' supervisor's] group[.]" Id. at 27.

      The names of the five grievants are not specifically set forth, and it is unclear from the record which five grievants are entitled to receive overtime pay. While the Agency concedes that five grade 12 investigators worked under the grievants' supervisor, it also adds that a number of other investigators worked under this supervisor at various times over the last few years. Accordingly, after review of the award, we find that additional clarification is warranted in order to determine who is eligible for overtime. As such, this portion of the award will be remanded to the parties, absent settlement, for resubmission to the Arbitrator.

C.     The Award is Not Based on Nonfacts

      To establish that an award is deficient as based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See Lowry, 48 FLRA at 593. Moreover, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. United States Dep't of Health and Human Serv., Denver, Colo., 56 FLRA 133, 135 (2000) (HHS).

      We reject the Agency's first contention, that the Arbitrator did not find any evidence to support a conclusion [ v59 p693 ] that the Agency suffered or permitted overtime work. In his award, the Arbitrator determined that such overtime work took place based on the testimony of various witnesses. Award at 21-22, 26-27. Additionally, the Arbitrator determined that employees had on occasion directly informed management that they had performed work outside of their normal forty hour workweek and that, at least with respect to one employee, "everyone knew" she would work through her unpaid lunch. [n4]  Id. at 5. Moreover, even the Agency concedes that on occasion some overtime work occurred, although it characterizes this work as de minimis. Exceptions at 6 n.7. As such, given that the record shows that contrary to the Agency's exceptions that facts supporting the Arbitrator's decision were disputed at the hearing, the Authority will deny this portion of the Agency's exception. HHS, 56 FLRA at 135.

      Turning to the Agency's next contention, the Agency argues that the Arbitrator based his decision on a nonfact and was contradictory when he determined that "[t]he Agency knew or should have known that overtime work was being performed and did nothing to stop it or properly compensate Grievants who worked that overtime." Award at 28. Again, we disagree for the reasons below.

      In making this finding, the Arbitrator, while noting that "there was no suggestion in any of the testimony that [the supervisor] willfully violated the overtime requirements[,]" stated thereafter, "[w]hat is quite apparent is that the Agency has not maintained any controls over overtime." Award at 26. In this respect, the Arbitrator found that employees were told to sign in and out on their time sheets at their normal times regardless of whether they stayed longer to finish their work. Id. at 22-23. Moreover, the Arbitrator noted that the "[l]ooseness in the system was quite obvious," when the grievant took off time to go out of town on personal business. Id. at 23. In this regard, the Arbitrator noted that while on leave, the grievant was asked during this period to provide work related information, yet she was never compensated for those hours. Accordingly, the Arbitrator found that the Agency's overall failure to maintain controls over overtime constituted a willful violation of the FLSA. [n5]  The Arbitrator's findings that the supervisor did not willfully violate overtime requirements and that the Agency failed to maintain adequate controls upon overtime are not contradictory. Therefore, based on the above, the Agency has failed to show how this portion of the Arbitrator's award is deficient as either contradictory or based on a nonfact.

      Finally, turning to the Agency's remaining contention, that the Arbitrator's decision to expunge the PIP was based on three major nonfacts, we note that at the hearing the parties directly disputed whether the facts warranted the grievant being placed on a PIP. In resolving these contentions, the Arbitrator found that the Agency's justification for placing the grievant on a PIP was unsubstantiated. Award at 12, 14. In so doing, the Arbitrator characterized the Agency's contentions that the grievant's "assessments were rambling, difficult to read, and not organized" as nothing more than "denouncements of [the] Grievant's work habits" and noted that the grievant's supervisor "could not identify any single case in her accusation about [the grievant's] case assessments being rambling; difficult to read and not well organized." Id. Additionally, the Arbitrator also noted that the Agency's decision to place the grievant on a PIP lacked sufficient foundation as the grievant was never adequately appraised of any perceived deficiencies. Id. at 18. Therefore, as the facts surrounding the Agency's justification for the grievant's PIP were matters that were disputed by the parties at the hearing, the Agency's exception provides no basis for finding the award deficient. See United States Dep't of Defense, The Adjutant General, Nat'l Guard Bureau, Tenn. Air Nat'l Guard, 56 FLRA 588, 590 (2000). Accordingly, the Agency's nonfact exceptions are denied.

D.     Contrary to Law

      The Agency states "[s]ince a PIP is not disciplinary, but rather a mechanism to provide additional supervision, it should not be subject to rescission" and that placing the grievant on sufficient notice prior to the PIP "is without any basis in Federal employment law under Chapter 43." Exceptions at 15 (citing chapter 43 of title 5 of the U.S. Code). However, with respect to the Agency's argument pertaining to Chapter 43, we reject the Agency's contention by noting that the Arbitrator found that there was no just cause for the PIP here based upon a variety of facts as expressed in his decision, not on an absolute rule that notice must be first given to an employee prior to placement on a PIP. Moreover, turning [ v59 p694 ] to the remaining argument, that the Arbitrator may not rescind the PIP, the Agency cites to no authority that would limit the Arbitrator's ability to act in this manner. Accordingly, this unsupported contention is nothing more than a bare assertion. See AFGE, Local 2274, 57 FLRA 586, 589 n.6 (2001). As such, the Agency has failed to show how this portion of the Arbitrator's award is contrary to law.

      The next Agency exception challenges the award's consistency with 5 U.S.C. § 5596, 5 U.S.C. § 7701(g) and the Equal Pay Act, 29 U.S.C. § 216(b). The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Under the Back Pay Act, 5 U.S.C. § 5596, an employee entitled to back pay may also receive "reasonable attorney fees related to the personnel action . . . ." See 5 U.S.C. § 5596(b)(1)(A)(ii). If "fees are sought in a grievance", then they are awarded "in accordance with standards established under section 7701(g) of [title 5]," which pertains to attorney fee awards by the Merit Systems Protection Board (MSPB). AFGE, Local 1547, 58 FLRA 241, 242 (2002).

      In this matter, the Arbitrator may not grant attorney fees under the Back Pay Act in the absence of a fee request. 5 C.F.R. § 550.807(a) (Payment of reasonable attorney fees premised on an employee or an employee's personal representative requesting such payment). Moreover, even if such request had been submitted, the Authority has found that mere conclusory comments as to the payment of such fees may not be sufficient for the Authority to determine whether an award satisfies the Back Pay Act. For instance, in Alabama ACT, 56 FLRA 231, 235 (2000) (Chairman Wasserman dissenting) the Authority noted:

The record contains no arbitral analysis and no factual findings regarding the reasonableness of the hours billed or the hourly rate charged. Instead, the Arbitrator made only conclusory comments that the request for $10,000 in fees was `outrageous,' and `not reasonable' in light of the case being `very easy . . . without serious dispute.'

      As such, given the absence of a fee request, the award is deficient. 5 C.F.R. § 550.807(a). Additionally, even if such request had been provided, the Arbitrator should "explain the statutory and factual basis for any award of reasonable attorney fees." See United States Dep't of Commerce, NOAA, Office of Marine and Aviation Operations, Marine Operations Ctr., Va., 57 FLRA 430, 434-35 (2001). Accordingly, this portion of the award will be set aside without prejudice to the Union to file a fee request to the Arbitrator under either the Back Pay Act or FLSA, and, if such request is filed, for the Agency to respond. See United States Dep't of the Army, Red River Army Depot, Texarkana, Tex., 54 FLRA 759, 763 (1998). [n6] 

      Turning to the Agency's last contention, that the award of fees for the PIP portion of the decision is contrary to the Back Pay Act, we note that under the Back Pay Act, in order for an arbitrator to authorize back pay, the arbitrator must find that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action directly resulted in the withdrawal or the reduction of an employee's pay, allowances or differentials. 5 U.S.C. § 5596(b)(1); AFGE, Local 916, 57 FLRA 715, 717 (2002). However, in the absence of satisfying the above findings, an employee is not entitled to reasonable attorney fees. 5 U.S.C. § 5596(b)(1)(A)(ii).

      Here, under the second portion of the above standard, i.e., the personnel action directly resulted in the withdrawal or the reduction of an employee's pay, allowances or differentials, the Arbitrator has failed to show, and the record does not otherwise provide, how the placement of the grievant on a PIP directly resulted in the withdrawal or the reduction of the grievant's pay, allowances or differentials. Moreover, the Authority has previously determined that:

There is no right to money damages in a suit against the United States without a waiver of sovereign immunity. United States v. Testan, 424 U.S. 392, 402 (1976). In order to waive sovereign immunity, Congress must unequivocally express its desire to do so. U.S. Department of Transportation, Federal Aviation Administration, 52 FLRA 46, 49 (1996) (citing [ v59 p695 ] Lane v. Pena, 64 U.S.L.W. 4541 (June 20, 1996)). The Government's consent to a particular remedy also must be unambiguous. Id.

United States Dep't of Health and Human Services, 54 FLRA 1210, 1217 (1998). Therefore, as the Back Pay Act is not applicable here, and the United States has not otherwise waived its sovereign immunity to be liable for attorney fees under these circumstances, this portion of the Arbitrator's award for attorney fees and costs is contrary to law.

VI.     Decision

      The Union's motion to dismiss is denied. The portion of the award pertaining to which specific grievants are entitled to overtime payments is remanded to the parties, absent settlement, for resubmission to the Arbitrator for clarification. Additionally, the portion of the award pertaining to the payment of attorney fees and costs over the issue of overtime is set aside without prejudice to the Union to file a fee request to the Arbitrator under either the Back Pay Act or FLSA, and, if such request is filed, for the Agency to respond. The portion of the award granting attorney fees and costs pertaining to the Agency's implementation of the PIP is deficient and is set aside. The remainder of the Agency's exceptions are denied.


Appendix

Section 42.08 Appeals of Local Arbitrations

Appeals of Local Arbitration decisions may be moved to National arbitration by either the President, National Council of EEOC Locals, or the Director, Employee and Labor Relations Division by submitting a written request to arbitrate to the other Party within 20 calendar days after the date of the Local Arbitrator's decision or date of any subsequent clarification of that decision. The request shall be dated and shall identify the case by grievant name and/ or number, the issue(s) raised in the grievance and the specific contract provision(s) in dispute, the relief sought and the name of the Representative. The Party appealing the decision of a Local Arbitrator to the National Arbitrator must specify whether or not a hearing is necessary. Neither Party shall raise issues for arbitration which were not stated and considered as part of the grievance under Article 41.00.

The Party moving a Local arbitration decision on appeal to the National Arbitrator shall pay the National Arbitrator's fees, travel and per diem expenses.



Footnote # 1 for 59 FLRA No. 124 - Authority's Decision

   Based on this finding, it is apparent that the Arbitrator determined that the Agency had willfully disregarded the FLSA. We reach this conclusion by noting that only where there is such willful disregard may back pay be awarded for a three year period. 29 U.S.C. § 255(a).


Footnote # 2 for 59 FLRA No. 124 - Authority's Decision

   Article 42.08 can be found in the Appendix at the end of this decision.


Footnote # 3 for 59 FLRA No. 124 - Authority's Decision

   The Agency states that it contacted the Arbitrator for a clarification of his award, but that as of the date of its exceptions the Arbitrator had failed to respond. Exceptions at 5.


Footnote # 4 for 59 FLRA No. 124 - Authority's Decision

   While the Arbitrator determined that the Agency would on occasion give an employee compensatory time off for working additional hours, the Arbitrator noted that "this was not a consistent practice and there is no record of the awarding time off." Award at 22.


Footnote # 5 for 59 FLRA No. 124 - Authority's Decision

   While the Arbitrator did not make this finding of "willful disregard" explicitly, we note that after acknowledging the Union's argument that under the FLSA in order to go back three years there must be a willful disrega