49:0027(6)AR - - Navy, Naval Surface Warfare Center, Crane Division, Crane, IN and AFGE Local 1415 - - 1994 FLRAdec AR - - v49 p27

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The decision of the Authority follows:

49 FLRA No. 6










LOCAL 1415





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 [8] [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

A. Union

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.

B. Agency

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