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The decision of the Authority follows:
49 FLRA No. 6
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
NAVAL SURFACE WARFARE CENTER
CRANE DIVISION, CRANE, INDIANA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 4, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John C. Shearer filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied in part and sustained in part a grievance alleging that the Agency violated law and regulation when it reclassified certain employees from non-exempt to exempt status under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.
For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance alleging that the Agency violated law and regulation by improperly excluding certain categories of employees from the coverage of the FLSA. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issues, in pertinent part, as follows:
At the time of the filing of the grievance . . . were the GS-0856-11/12 (electronic technician), GS-0802-11/12 (engineering technician), GS-0334-11/12 (computer specialist) and GS-1910-12 (quality assurance specialist) positions held by the individuals listed in Grievance 6-89 . . . exempt from the overtime provisions of the FLSA under the criteria established for exemption in 5 CFR 551.201 through .206 . . . If not, what should the remedy be?
If any or all of the positions are non-exempt under the FLSA, when is the non-exempt status effective, and to what date, if any, is back pay for overtime worked to be effective?
Award at 6.
The Arbitrator noted that the Agency conceded that certain grievants were improperly exempted from the coverage of the FLSA and were entitled to relief. The Arbitrator determined that "there remain[ed] in dispute  [g]rievants from or for whom there was testimony and 15 [g]rievants concerning whom no testimony was offered by the Union." Id. at 5.
The Arbitrator concluded that 15 grievants were correctly classified as exempt from the coverage of the FLSA and denied their claims. According to the Arbitrator, "[t]he Union did not refute the Agency's documentary and testimonial evidence that . . . confirmed the correctness of the exempt status of the 15 [g]rievants . . . ." Id. at 7. Of the remaining eight grievants, the Arbitrator concluded that one was correctly exempted from the coverage of the FLSA. However, the Arbitrator determined that "none of the other seven satisfied all of the . . . [e]xemption [c]riteria . . . [and] their reclassification to exempt status were improper." Id. at 8. The Arbitrator found that, but for the Agency's improper classification of the grievants as exempt, they would have been compensated under the FLSA.
The Arbitrator rejected the Union's contention that the effective date of the award of backpay to the affected grievants should be the date the Agency designated each grievant as exempt. The Arbitrator determined, based on Article 36, Section 4 of the parties' agreement, that the "sucessful" grievants were entitled to backpay beginning 20 days prior to the filing of the grievance.(1) Id. As his award, the Arbitrator ordered the Agency to make each grievant whole, from that date, for any losses caused by their improper exemption from FLSA coverage.
III. Positions of the Parties
The Union contends that the Arbitrator's award is contrary to law, rule, and regulation because, contrary to American Federation of Government Employees, AFL-CIO v. Office of Personnel Management, 821 F.2d 761 (D.C. Cir. 1987) (AFGE v. OPM), the Arbitrator shifted the burden of proving whether the grievants were properly exempt from coverage under the FLSA to the Union. The Union also contends that the Arbitrator did not properly evaluate the evidence. The Union maintains that it demonstrated that the 15 grievants, which the Arbitrator found were correctly classified as exempt, were nonexempt from the FLSA. Finally, the Union contends that, by limiting the retroactivity of the remedy to a date 20 days prior to the filing of the grievance, the award is inconsistent with 5 C.F.R. §§ 551.102 and 551.401.
The Agency asserts that the Union's contention that the Arbitrator improperly placed the burden of proof on the Union constitutes "mere disagreement with the arbitrator's reasoning and conclusions." Opposition at 2. The Agency also disputes the Union's contention that the remedy is inconsistent with 5 C.F.R. §§ 551.102 and 551.401. The Agency asserts that the Union's exception is "mere disagreement with the [A]rbitrator's reasoning in fashioning the remedy in the case." Id. at 6.
IV. Analysis and Conclusions
In AFGE v. OPM, the court concluded that the FLSA provided that employees were presumed eligible for overtime and that agencies bore the burden of showing that employees were exempt from FLSA coverage. 821 F.2d at 770-71. Here, the Arbitrator noted that AFGE v. OPM and 5 C.F.R. § 551.202 placed the burden of proof on the Agency.(2) The Arbitrator found that the "Agency's documentary and testimonial evidence . . . confirmed the correctness of the exempt status of the 15 [g]rievants concerning whom the Union presented no evidence." Award at 7.
We conclude that the Union's reliance on the Arbitrator's statement that the Union presented no evidence is misplaced. In our view, the Arbitrator's statement reflects only a factual finding that the Union did not present any rebuttal evidence concerning 15 grievants and does not establish that the burden of proof was placed on the Union. It is clear from the award as a whole that the Arbitrator evaluated the evidence submitted by the Agency and concluded that the Agency sustained its burden of proving that 15 of the disputed employees were exempt from the FLSA. We conclude that the Union's exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and his reasoning and conclusions and as such, provides no basis for finding the award deficient. For example, U.S. Department of the Air Force Headquarters, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 40 FLRA 88, 93 (1991); U.S. Department of Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 34 FLRA 315, 318 (1990).
In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 47 FLRA 819, 828-29 (1993) (HHS), we addressed the issue of backpay for overtime compensation under the FLSA and upheld an arbitrator's award granting backpay for a 6-year period. We found that the arbitrator was not required to apply the statute of limitations set forth in the FLSA and that the arbitrator properly resolved the dispute under the parties' negotiated grievance procedure and the Back Pay Act. We noted that nothing in the Back Pay Act limits the period of time for which an award of backpay can be made. See HHS, 47 FLRA at 828, and cases cited therein at 828-29. We also noted that arbitrators possess great latitude and discretion in fashioning remedies. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 98, 101 (1993).
We find no merit in the Union's contention that the award in this case violates 5 C.F.R. §§ 551.102 and 551.401 because it fails to grant backpay from the date the grievants were exempted from the FLSA.(3) As relevant here, 5 C.F.R. § 551.102(e) defines work which is "suffered or permitted." 5 C.F.R. § 551.401(a) provides that, for the purpose of determining "hours of work" under the FLSA, "time during which an employee is suffered or permitted to work" is "hours of work." We find nothing in 5 C.F.R. § 551.102 or 5 C.F.R. § 551.401 which would preclude the Arbitrator in this case from limiting backpay to 20 days prior to the date the grievance was filed. Moreover, the Union has not demonstrated that any other statute or regulation obligated the Arbitrator to award backpay retroactive to the date the grievants were exempted from the FLSA. Accordingly, the exception provides no basis for finding the award deficient. See, for example, U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457 (1991).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 36, Section 4 provides, in relevant part, as follows:
SECTION 4. Grievances must be presented in writing within twenty (20) calendar days from the date the employee(s) or the union official become aware of the matter which prompted the grievance. . . .
Award at 5.
2. 5 C.F.R. § 551.202, which addresses general principles governing exemptions under the FLSA, provides, in relevant part:
(b) The burden of proof rests with the agency that asserts the exemption.
3. 5 C.F.R. § 551.102(e) provides, in relevant part:
"Suffered or permitted" work means any work performed by an employee for the benefit of an agency, whether requested or not, provided the employee's supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed.
5 C.F.R. § 551.401 provides in relevant part:
(a) All time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is "hours of work."
Such time includes:
. . . .
(2) Time during which an employee is suffered or permitted to work[.]