32:0638(93)AR - - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1482 - - 1988 FLRAdec AR - - v32 p638

[ v32 p638 ]
The decision of the Authority follows:

32 FLRA No. 93







Case No. 0-AR-1452
(31 FLRA 1184)


I. Statement of the Case

This matter is before the Authority on a motion filed by the Department of the Navy (the Agency) on behalf of the Activity seeking reconsideration of the Authority's decision of April 22, 1988, in 31 FLRA 1184. The Union filed an opposition.

In our prior decision, 31 FLRA 1184, we found that the grievant's position was not determined to be exempt from the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., until November 1986. We based our finding on the Agency's uncontroverted statement in the record and on evidence submitted by the Agency. In view of our finding, we concluded that the grievant was eligible for overtime from March 12, 1986 through October 30, l986 under the FLSA rather than under 5 U.S.C. § 5542(a), as the Agency claimed. Accordingly, we found that the Arbitrator had not erred in finding that the grievant was entitled to certain overtime for this period, and we denied the Agency's exception.

For the reasons discussed below, we grant the Agency's motion for reconsideration and remand the award to the parties for the purpose of seeking clarification from the Arbitrator of the grievant's exemption status and the effect of that status on his entitlement to overtime.

II. Positions of the Parties

The Agency states that: (1) the Authority "through no fault of its own" used an incorrect date for determining the date of the grievant's exemption from the provisions of the FLSA; and (2) the Agency "incorrectly presented this date in its exceptions" and "a document substantiating this date . . . was of insufficient quality to allow the Authority to determine the correct date." Agency Motion for Reconsideration at 4. The Agency maintains that the date on which the employee was determined to be exempt from the FLSA was November 10, 1985, rather than November l986, as it previously stated. In view of the November 1985 date, the Agency contends that the grievant's entitlement to overtime for the period in question is governed by 5 U.S.C. § 5542 rather than the FLSA and that the Arbitrator's decision is contrary to 5 U.S.C. § 5542. The Agency, therefore, requests the Authority to grant its motion and reverse the Arbitrator's decision.

The Union opposes the Agency's request. The Union contends that the Agency has already had the opportunity to except to the Arbitrator's award and, therefore, the Authority should not grant the motion for reconsideration. Union Opposition to Agency Motion for Reconsideration at 1. The Union also questions the Agency's claim that the grievant was determined to be exempt from the FLSA in November 1985.

The Union states that if the Authority grants the Agency's motion, the Authority should reconsider whether the Agency's exceptions were timely filed and whether the Agency's actions constituted a prohibited personnel practice. In its Opposition to the Agency's Exception in 31 FLRA 1184, the Union had argued that because the Arbitrator found that the Activity had committed a prohibited personnel practice, in part, by changing the grievant's status under the FLSA from non-exempt to exempt, that change of status must be rescinded in its entirety. Union's Opposition to Agency's Exception at 2.

III. Discussion

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to request reconsideration of an Authority decision. We conclude that reconsideration of the decision should be granted because: (1) the evidence now presented by the Agency indicates that the November 1986 date on which we relied to determine the grievant's exemption status under the FLSA may be incorrect; and (2) the date of the grievant's exemption determination is determinative of the legality of the award. Under these circumstances, we find that extraordinary circumstances exist for granting the motion for reconsideration.(*)

More particularly, Federal employees may be awarded overtime under 5 U.S.C. § 5542 or the FLSA. See Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and Philadelphia Metal Trades Council, Philadelphia, Pennsylvania, 28 FLRA 574 (1987). The determination as to which statute is applicable depends on whether an employee's position is determined to be exempt or nonexempt from the FLSA. Here, the Agency claims that the grievant's entitlement to overtime is governed by 5 U.S.C. § 5542 because his position was determined to be exempt from the FLSA in November l985. The Union questions the Agency's representation because it is inconsistent with the Agency's previous representation that the grievant was determined to be exempt from the FLSA in November 1986. The parties' positions show that there is a factual dispute as to the date of the grievant's exemption.

In view of the parties' dispute as to the date of the grievant's exemption, we find that we cannot resolve the controversy over whether or not the Arbitrator's decision awarding overtime to the grievant is contrary to law. Although the Activity argued before the Arbitrator that the "[g]rievant is not entitled to any overtime because he was an exempt employee," the Arbitrator did not address this contention in his decision. Arbitrator's Award at 6. Thus, we find that the award requires clarification as to the grievant's exemption status, and as a part of that clarification, the Arbitrator should resolve the dispute over the date on which the grievant was determined to be exempt.

We find, therefore, that it is necessary to remand the portion of the award relating to overtime for the grievant from March 12 through October 30, 1986, to the parties to have them obtain a clarification and interpretation of the award from the Arbitrator.

While we grant the motion