United States, Department of the Army, Army Tank - Automotive, and Armaments Command, Warren, Michigan (Agency) and American Federation of Government Employees, Local 1658 (Union)

[ v61 p637 ]

61 FLRA No. 124

UNITED STATES
DEPARTMENT OF THE ARMY
ARMY TANK - AUTOMOTIVE
AND ARMAMENTS COMMAND
WARREN, MICHIGAN
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1658
(Union)

0-AR-3944

_____

DECISION

July 27, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Paul E. Glendon 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. [n1]  The Union filed oppositions to the Agency's exceptions. [n2] 

      The Arbitrator denied in part and sustained in part a grievance, which alleged that four grievants were improperly designated as exempt employees under the Fair Labor Standards Act (FLSA). As relevant here, the Arbitrator ordered back pay and statutory liquidated damages for uncompensated overtime for the time that three grievants performed Shift Leader duties in the Tank-Automotive and Armaments Command Operations Center (TOC). [n3]  The Arbitrator also ordered the Agency to reimburse the Union and one grievant for reasonable attorney fees and costs associated with the processing of the grievance.

      For the reasons set forth below, we set aside the Arbitrator's award to the extent it orders the Agency to pay grievant Payne nonexempt overtime pay for the period of November 2001 through March 2003, and deny the Agency's remaining exceptions.

II.     Background and Arbitrator's Award

      The grievants' official position descriptions (PDs) are classified as FLSA exempt GS-12 Logistics Management Specialists. See Award at 2. After the events of September 11, 2001, the Agency increased the TOC staff and, in addition to their normal assignments, assigned the grievants to the TOC. In the TOC, the grievants worked as Shift Leaders and continued to be paid overtime as FLSA exempt employees. See id. at 2. The Union filed a grievance claiming that while the grievants were assigned to the Shift Leader duties they should have been designated FLSA nonexempt and paid accordingly. [n4]  The grievance was unresolved and was submitted to arbitration. The Arbitrator stated the issues to be: "Did the Employer violate CFR Part 551 by designating all the grievants' work as Shift Leaders in the TOC as FLSA exempt and paying them for overtime work in such capacity accordingly? If so, what are the appropriate remedies?" Id. at 1.

      The Arbitrator found that, as a Logistics Management Specialist, grievant Payne provided readiness support. Id. at 3. The Arbitrator determined that grievant [ v61 p638 ] Payne's official PD stated that he may be required to act as a "shift supervisor" in the TOC, that he performed Shift Leader duties on "extra shifts and weekends" from October 2001 through March 2003, and that he was detailed to the TOC in April 2003 until his retirement on September 30, 2003. Id. With regard to grievant Lee, the Arbitrator found that these duties were not listed in her official PD and that she performed Shift Leader duties in the TOC on "weekends" and "parts of some regular shifts" from November 2001 until she was detailed there on March 23, 2003. Id. Regarding grievant Hawk, the Arbitrator determined that "she was assigned full-time to TOC Shift Leader duties" in October 2001. Id. at 4.

      In determining the exemption status of the grievants while performing Shift Leader duties, the Arbitrator applied 5 C.F.R. § 551.208 (§ 551.208), which provides that FLSA exempt employees shall receive FLSA nonexempt overtime pay for the temporary performance of nonexempt duties, where certain criteria are met. [n5]  See id. at 8. The Arbitrator determined that Glazier's and Lee's "intermittent extra-shift overtime work" remained FLSA exempt because it did not satisfy the 30-day test set forth in § 551.208(c)(1). See id. at 11. With respect to grievant Payne, the Arbitrator found that, because acting as a shift supervisor in the TOC was a duty listed in his official PD, the Shift Leader duties were not temporary and, thus, not governed by § 551.208. See id.

      The Arbitrator found that the fact that the Shift Leader duties were part of grievant Payne's official PD did not establish that he was FLSA exempt when performing such duties. In this connection, the Arbitrator determined that the Agency had the burden of establishing, as it claimed, that grievant Payne was an FLSA exempt administrative employee under 5 C.F.R. § 551.206 (§ 551.206) when performing the Shift Leader duties. [n6]  The Arbitrator determined that the Agency had not established that the grievants Shift Leader duties satisfied the administrative exemption criteria. Accordingly, the Arbitrator determined that he must "default" to the regulatory presumption that when working as a Shift Leader, grievant Payne was FLSA nonexempt. See id. at 14.

      Based on the foregoing, the Arbitrator ordered the Agency to pay grievant Hawk backpay and liquidated damages from October 2001, grievant Payne backpay and liquidated damages from November 2001 to his retirement on September 30, 2003, and grievant Lee backpay and liquidated damages from March 23, 2003. In addition, he ordered the Agency to reimburse grievant Payne and the Union for reasonable attorney fees and costs associated with the processing of the grievance. See id. at 15-16.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency asserts that 5 C.F.R. § 551.702(c) "allows for an award of back pay from the date of February 7, 2003 [the date the grievance was filed] and for 2 years back." See Exceptions at 3 (emphasis in original). As such, the Agency claims that the award is contrary to 5 C.F.R. § 551.702(c) because it provides backpay for the period of time after the grievance was filed. See id. The Agency also asserts that the award is contrary to 29 U.S.C. § 255(a) and 5 C.F.R. § 551.702(a) and (c) because the award provides backpay "in excess of . . . the ordinary 2-year statute of limitations[.]" [n7]  Id. at 4. Specifically, the Agency contends that the award of "any back pay accrued prior to February 7, 2001 (i.e., 2 years back from the date the action was filed) and after February 7, 2003 is not supportable[.]" Id.

      In addition, the Agency asserts that the award of backpay to grievant Payne for his performance of Shift Leader duties in the TOC prior to April 2003 is "contrary to law." Id. at 5. In this connection, the Agency asserts that the Arbitrator erred in finding that § 551.208 is not applicable in determining grievant Payne's exemption status while intermittently performing as Shift Leader. [n8]  According to the Agency, it was uncontested [ v61 p639 ] that the grievant Payne's original position, which included Shift Leader duties, was exempt from the FLSA. The Agency further asserts that, in this situation, the temporary duty regulation of "§ 551.208(c) is the only regulatory mechanism to change an exempt employee's work into non-exempt" status. Exceptions at 11 (emphasis in original). Thus, according to the Agency, the Arbitrator should have applied § 551.208 to grievant Payne and denied payment under that regulation because grievant Payne, like grievants Glazier and Lee, did not meet the 30-day requirement of that regulation. See id. at 6, 11, 12. The Agency notes that, even if § 551.208 does not apply, grievant Payne is not entitled to non-exempt overtime because "the exempt FLSA determination of [his] position . . . must stand." Id. at 12-13.

      The Agency further contends that the Arbitrator exceeded his authority because he resolved an issue not submitted to arbitration. In this connection, the Agency claims that the Arbitrator's designation of grievant Payne's Shift Leader duties as nonexempt changed the exemption status of grievant Payne's official PD, even though the issue of whether grievant Payne's PD was properly classified was not an issue submitted to arbitration. See id. at 6, 10-11. In addition, the Agency asserts that the Arbitrator exceeded his authority by finding that § 551.208 does not apply to grievant Payne's Shift Leader work because his PD required him to act as a "shift supervisor[.]" Id. at 12. The Agency also asserts that the Arbitrator exceeded his authority by awarding damages "in excess of not only the ordinary 2-year statute of limitations but also in excess of the 3-year statute of limitation[s]." Id. at 4.

B.      Union's Opposition

      The Union asserts that the award of backpay is not contrary to law because each FLSA violation gave "rise to a new cause of action" and "each failure to pay overtime [began] a new statute of limitations period as to that particular event." Opposition at 1 (Union President); Opposition at 2 (Attorney Mason). In addition, the Union asserts that the Agency did not raise the statute of limitations issue before the Arbitrator. See Opposition at 4 (Attorney Mason).

      With regard to grievant Payne's FLSA exemption status, the Union contends that the Arbitrator properly applied § 551.206. See id. at 9-10. The Union also contends that the Arbitrator properly determined that § 551.208 was not applicable because, while performing the Shift Leader duties, grievant Payne was performing duties listed in his PD and, thus, "any time he worked in the TOC prior to his detail . . . in April 2003 should not be considered to have been temporary." Id. at 5.

IV.     Analysis and Conclusions

A.      The statute of limitations exceptions are not barred under § 2429.5 of the Authority's Regulations.

      The Union asserts that the Agency did not timely raise the statute of limitations exception. We construe this as a claim that the exception is barred from consideration pursuant to 5 C.F.R. § 2429.5, which bars Authority consideration of any issue that could have been, but was not, presented to the arbitrator. As the Agency's post-hearing brief establishes that the statute of limitations issue was raised before the Arbitrator, we will consider the exception. See Exceptions, Attachment 4 at 4 (Agency's Post-Hearing Brief).

B.      The award is contrary to law in awarding pay to Grievant Payne prior to April, 2003, but not in other respects.

      The Agency claims that the award is contrary to law in several respects. When a party's exceptions involve an award's consistency with law, the Authority reviews the question of law and the arbitrator's award 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 de novo standard of review, the Authority assesses 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 assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

1.      The award is not contrary to 29 U.S.C. § 255(a) and 5 C.F.R. § 551.702.

      Under the FLSA, 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. See 29 U.S.C. § 255(a) and 5 C.F.R. §§ 551.702(a) and (c). Further, 5 C.F.R. § 551.702(c) states that "[i]f a claim for back pay is established, the claimant will be entitled to pay for a period of up to 2 years (3 years for a willful violation) back from the date the claim was received." 5 C.F.R. § 551.702(c) (emphasis in original).

      With regard to the Agency's claim that the award is contrary to law because it awards backpay for the period of time after February 7, 2003 -- the date the grievance was filed -- the Authority has held under [ v61 p640 ] similar circumstances that a statute of limitations operates to determine the earliest date that liability may be established; it does not establish when the liability ends. See United States Dep't of Transp., Fed. Aviation Admin., Airways Facility Serv., Nat'l Airways Sys. Eng'g Div., Okla. City, Okla., 60 FLRA 565, 569-70 (2005) (Back Pay Act). Consistent with this principle, the Authority has upheld an award of overtime pay for the period after a grievance was filed. See United States Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Office of Marine & Aviation Operations, Marine Operations Ctr., Va., 57 FLRA 430 (2001) (NOAA); see also Rushing v. Shelby County Gov't, 8 F. Supp. 2d 737, 747 (W.D. Tenn. 1997) (awarding FLSA back pay for two years prior to the filing of a complaint until the date of the employer's most recent violation). Based on the foregoing, we find that the Agency has not demonstrated that the award is contrary to law in this respect, and deny the exception.

      Regarding the Agency's claim that the award is contrary to law because it awards backpay retroactive to more than two years before the grievance was filed, the record establishes that the grievance was filed on February 7, 2003. Thus, under 5 C.F.R. § 551.702(c), the Arbitrator was prohibited from awarding backpay for disputed work performed prior to February 7, 2001. The Arbitrator ordered the Agency to pay grievant Hawk overtime beginning in October 2001, grievant Payne overtime beginning in November 2001, and grievant Lee overtime beginning in March 2003. As the awards were within the statutory period, we find that the Agency has not established that the award is contrary to law, and deny the exception.

2.      The award of overtime pay to grievant Payne for work performed prior to April 2003 is contrary to § 551.208.

      There is no dispute that during the relevant time period -- from October 2001 until grievant Payne's detail to the TOC in April 2003 -- the grievant's ordinary duties as a Logistics Management Specialist were properly classified as FLSA exempt. In addition, there is no longer a dispute -- the Agency does not except to the Arbitrator's finding -- that the Shift Leader duties assigned to the grievant are FLSA nonexempt. The Agency claims that, in these circumstances, the award of backpay to grievant Payne for his performance of Shift Leader duties in the TOC prior to April 2003 is contrary to law. In particular, the Agency asserts that, contrary to the Arbitrator's conclusion that § 551.208 did not apply to the grievant's performance of the Shift Leader duties, that provision is the "only regulatory mechanism to change an exempt employee's work into non-exempt" in a situation, such as this one, where the employee's ordinary duties are exempt. Exceptions at 11 (emphasis in original). The Agency claims that, if the Arbitrator properly had applied § 551.208, then he would have concluded that grievant Payne was not entitled to nonexempt backpay for performing Shift Leader duties in the TOC prior to April 2003 because he did not perform those duties for 30 calendar days.

      The Agency is correct that, in a situation where an employee's ordinary duties are properly classified as exempt, the employee may receive nonexempt overtime only pursuant to § 551.208(a). Thus, the Arbitrator improperly found that grievant Payne's situation was not "governed" by the regulation. Award at 11. Moreover, the Arbitrator's finding that the regulation did not apply because the disputed Shift Leader duties were included in his position description is not supported by the plain wording of the regulation, which contains no indication that such duties, which were not regularly performed by grievant Payne prior to the events giving rise to this case, cannot be considered temporary under the regulation.

      Applying § 551.208, there is no dispute that grievant Payne, like the other two grievants, did not meet the 30-calendar day requirement contained in the regulation. As such, the Arbitrator's award of FLSA nonexempt overtime pay for this period is contrary to law, and we set aside the award of overtime pay for this period.

C.      The Arbitrator did not exceeded his authority.

      In order to demonstrate that an arbitrator exceeded his or her authority, a party must demonstrate that the arbitrator failed to resolve an issue submitted to arbitration, resolved an issue not submitted to arbitration, disregarded a specific limit on his or her authority, or awarded relief to persons who are not encompassed within the grievance. See United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 887, 891 (2000).

      The Agency contends that the Arbitrator exceeded his authority because, by designating grievant Payne's shift leader duties as FLSA nonexempt, he made a determination regarding whether grievant Payne's official PD was properly coded as FLSA exempt, an issue not submitted to arbitration. See Exceptions at 6, 10-11. However, contrary to the Agency's claim, the Arbitrator made no determination regarding the exemption status of grievant Payne's official PD. Rather, he determined that grievant Payne's Shift Leader duties did not meet the administrative exemption criteria under 5 C.F.R. § 551.206. As the issue before the Arbitrator involved [ v61 p641 ] whether the Agency properly designated the shift leader work as FLSA exempt, there is no basis for finding that the Arbitrator exceeded his authority. See Award at 1; NOAA, 57 FLRA at 437-38. Accordingly, we deny the exception.

V.     Decision

      We set aside the award to the extent it orders the Agency to pay grievant Payne nonexempt overtime pay for the period of November 2001 through March 2003, and deny the Agency's remaining exceptions.


APPENDIX

As pertinent here, 5 C.F.R. 551.206, entitled "Administrative exemption criteria[,]" provides:

An administrative employee is an advisor or assistant to management, a representative of management, or a specialist in a management or general business function or supporting service and meets all four of the following criteria:

(a)      Primary duty test. The primary duty test is met if the employee's work --
(1)      Significantly affects the formulation or execution of management programs or policies; or
(2)      Involves management or general business functions or supporting services of substantial importance to the organization serviced; or
(3)      Involves substantial participation in the executive or administrative functions of a management official.
(b)      Nonmanual work test. The employee performs office or other predominantly nonmanual work
           which is --

(1)      Intellectual and varied in nature; or

(2)      Of a specialized or technical nature that requires considerable special training, experience, and knowledge.
(c)      Discretion and independent judgment test. The employee frequently exercises discretion and independent judgment, under only general supervision, in performing the normal day-to-day work.

As relevant here, 5 C.F.R. § 551.702, entitled "Time Limits[,]" states:

(a) Claims. A claimant may . . . file an FLSA claim concerning his or her entitlement to minimum wage or overtime pay for work performed under the Act; however, time limits apply to FLSA pay claims. All FLSA pay claims filed on or after June 30, 1994, are subject to a 2-year statute of limitations (3 years for willful violations).
. . . .
(c)      Preserving the claim period. A claimant or a claimant's designated representative may preserve the claim period by submitting a written claim either to the agency employing the claimant during the claim period or to OPM. The date the agency or OPM receives the claim is the date that determines the period of possible entitlement to back pay. . . . If a claim for back pay is established, the claimant will be entitled to pay for a period of up to 2 years (3 years for a willful violation) back from the date the claim was received.



Footnote # 1 for 61 FLRA No. 124 - Authority's Decision

   We note that the Agency's exceptions were initially dismissed as untimely, and were reinstated upon motion for reconsideration filed by the Agency.


Footnote # 2 for 61 FLRA No. 124 - Authority's Decision

   At the arbitration hearing, the Union was represented by the Union vice-president and an attorney (Attorney Mason). See Award at 1. Both the Union president and Attorney Mason filed oppositions to the Agency's exceptions. The Authority issued a show cause order directing the Union to establish which representative is the exclusive representative for the purpose of this appeal. In response, the Union stated that three separate grievances were involved in the arbitration and the Union vice-president represented two of the grievants and Attorney Mason represented the remaining grievant. Under these circumstances, since the Agency did not object to the separate filings, the oppositions are timely filed and not inconsistent, and the Union vice-president and Attorney Mason represented different grievants at the arbitration hearing, we will consider both of the oppositions. See United States Immigration & Naturalization Serv., 20 FLRA 391, 391 n.1 (1985) (permitting national and local offices of a union to file oppositions).


Footnote # 3 for 61 FLRA No. 124 - Authority's Decision

   The Arbitrator determined that the claim of one grievant "primarily" concerned whether his position was properly classified. The Arbitrator found that this claim was not arbitrable. See Award at 2-3. As there is no exception to this finding, we do not address it further.


Footnote # 4 for 61 FLRA No. 124 - Authority's Decision

   Under the FLSA, an agency is required to compensate FLSA nonexempt employees for all hours of work in excess of 40 hours a week at a rate equal to one and one-half times the employee's hourly regular rate of pay. See 5 C.F.R. § 551.501(a). The hourly overtime rate for FLSA exempt employees is equal to one and one-half times the rate of pay for grade GS-10, step 1.


Footnote # 5 for 61 FLRA No. 124 - Authority's Decision

   As relevant here, § 551.208 states that an FLSA exempt employee "who must temporarily perform work or duties that are not consistent with the primary or grade-controlling duty of the employee's official position description remains exempt for the entire period of temporary work or duties unless all three of the following conditions are met: (i) 30 day test. The period of temporary work or duties exceeds 30 calendar days; and (ii) Not exempt work or duty. The employee's primary duty for the period of temporary work or duties is not exempt work or duty as defined in this part; and (iii) Positions at GS-7 or above, or at situation 3 or 4. The employee's position . . . is properly classified in the General Schedule at GS-7 or above[.]" 5 C.F.R. § 551.208(c)(i)-(iii).


Footnote # 6 for 61 FLRA No. 124 - Authority's Decision

   With the exception of § 551.208, set forth above, all relevant provisions of the Office of Personnel Management (OPM) regulations implementing the FLSA are set forth in the appendix.


Footnote # 7 for 61 FLRA No. 124 - Authority's Decision

   29 U.S.C. § 255(a) provides, in relevant part, that an action to enforce overtime pay provisions of the FLSA "may be commenced