[ v55 p349 ]
55 FLRA No. 56
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
FALLS CHURCH, VIRGINIA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3615
March 31, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Andree Y. McKissick filed by the Agency under section 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.
The Arbitrator sustained a grievance alleging that the Agency unfairly discriminated against the grievant when it denied her request to work at home under the Agency's Flexiplace Work at Home Pilot Project. The Arbitrator awarded the grievant overtime pay, with interest, and, in addition, compensatory damages and liquidated damages under the Fair Labor Standards Act (FLSA). For the reasons that follow, we conclude that the Arbitrator's award of compensatory and liquidated damages under the FLSA is contrary to law. Accordingly, we modify the award to vacate the award of damages under the FLSA. The remaining Agency exceptions do not establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny those exceptions.
II. Background and Arbitrator's Award
In 1990, AFGE and SSA negotiated a national Memorandum of Understanding (MOU) on a Flexiplace Work at Home Pilot Project (hereinafter "the pilot project"). The MOU "set forth . . . specific conditions for participation." Award at 6. "[S]pecial consideration [was] given to qualified employees with: (1) disabilities; (2) dependent care needs; and (3) long distance travel between home and office." Id. at 6-7. The MOU stated that the pilot project would begin in October 1992 and expire in October 1993. At the conclusion of that time period, AFGE and SSA were unable to reach an agreement regarding continuation of the pilot project. However, at the SSA office involved in the instant case, several of the original participants continued to work at home under the guidelines of the pilot project, with the Agency's consent.
In 1996, the grievant, a Paralegal Legal Specialist, requested an opportunity to work at home under the pilot project. In support of her request, the grievant cited "hardship" reasons, including the care of her disabled mother and dependent teenage son. The Agency denied the request, claiming that the pilot project expired in 1993 and that, even assuming that the pilot project continued to operate in the absence of an agreement between the parties, the pilot project guidelines permitted only one paralegal legal specialist to work at home, and the "one [paralegal legal] specialist . . . selected to participate in the Pilot [program] . . . continue[d] to work at home under the terms of" the pilot program. Exceptions at 5, citing to Award at 7.
The matter was submitted to arbitration and, based on the parties' stipulation, the Arbitrator stated the issue as follows: "Does the Agency's denial of [the grievant's] request to Work-at-Home constitute a violation . . . of the National Agreement? If so, what is the proper remedy?" Award at 8.
The Arbitrator concluded that the Agency's refusal to allow the grievant to participate in the pilot project violated Article 3, Section 2 A, and Article 10, Sections 3 and 5 C of the parties' national collective bargaining agreement. [n2] In particular, relying on a prior arbitration award, the Arbitrator determined that the pilot project was "in fact operating in a de facto manner." [n3] Id. at 14. [ v55 p350 ] In the Arbitrator's view, it was inconsistent with Article 3 and Article 10 of the national agreement for the Agency to "contend that the Union [was] precluded from opening the door to participation" in the pilot project when the Agency itself was "engaged in . . . the continuation of the project. " Id. at 12. The Arbitrator found that, under Article 3 and Article 10 of the national agreement, continuation of the pilot project by the Agency required "nondiscriminatory treatment of similarly situated employees." Id. at 14. Accordingly, the Arbitrator stated that the grievant "should not be precluded from joining the [pilot] project" because, as "the sole provider of her dependent disabled mother [and] . . . as a single parent of a teenaged son[,]" she met "the established criteria" for participation in the pilot project. Id. at 13.
Before the Arbitrator, the Union argued that, if the Agency had permitted the grievant to participate in the pilot program, then the grievant would have had the opportunity to work 17 hours of overtime per week. The Arbitrator found that the Union supported this argument "with average of hours worked overtime, supported by an affidavit of the [g]rievant[.]" Id. at 17. The Arbitrator also determined that the grievant had been willing to fully utilize the 17 hours per week of available overtime, but that she was prevented from doing so because the Agency refused to allow her into the pilot program.
The Arbitrator sustained the grievance. To remedy the Agency's violation of the parties' collective bargaining agreement, the Arbitrator directed the Agency to allow the grievant to work at home. The Arbitrator awarded relief under both the Back Pay Act and the FLSA.
Applying the Back Pay Act, the Arbitrator directed the Agency to pay the grievant back pay, plus interest, as compensation for the 17 hours per week of overtime that she had been improperly denied from the date of her initial request through July 17, 1997.
The Arbitrator also found that the violation of the parties' agreement "supports monetary relief under the FLSA as well as additional relief of liquidated damages." Id. at 16-17. With regard to the Agency's liability under the FLSA for 17 hours per week of back pay, the Arbitrator determined that the Union "introduce[d] enough evidence to support a reasonable inference of hours worked." Id. at 17 (quoting Williams v. Tri-County Growers, Inc., 747 F.2d 121 (3d Cir. 1984)). With regard to the liquidated damages remedy, the Arbitrator asserted that "`unpaid overtime compensation' will result in an award of the disputed amount to an employee as well as an `additional equal amount as liquidated damages[.]'" Award at 17 (quoting 29 U.S.C. § 216).
The Arbitrator concluded that "the effect of the denial to work at home was unfair and discriminatory to the [g]rievant[,]" that "the collective remedies are neither unreasonable nor excessive[,]" and that "the Union has met its burden of proof by a preponderance of evidence as required." Id. at 17.
III. Preliminary Matters
The parties dispute whether the Agency complied with the Authority's service requirements and whether the Union's opposition was timely filed. For the reasons explained below, we find that the Agency's and Union's submissions are both properly before the Authority.
1. The Agency's exceptions are properly before the Authority.
The Union contends that the Agency failed to comply with the service requirements set forth in section 2429.27 of the Authority's Regulations and, therefore, we should dismiss the Agency's exceptions. See Opposition at 2. In particular, the Union asserts that the Agency's statement of service: (1) contains an incomplete address; and (2) shows service on an individual who was no longer a representative of the Union. See id.
The Authority has declined to dismiss filings on the basis of minor deficiencies where the deficiencies did not impede the opposing party's ability to respond. See, e.g., Social Security Administration, Branch Office, East Liverpool, Ohio and American Federation of Government Employees, Local 3448, 54 FLRA 142, 145 (1998) (citing U.S. Department of the Navy, Naval Audit Service, Southeast Region and National Federation of Federal Employees, 44 FLRA 717, 717 n.1 (1992)) (SSA, East Liverpool). Here, the record shows that the Agency timely filed its exceptions with the Authority, and the Union concedes that it was aware that the Agency had filed exceptions with the Authority. See Union's Response to Show Cause Order, Attachment 2 (Affidavit of Thomas R. Webb). At the Union's request, the Agency provided the Union with a copy of the exceptions on February 9, 1998. Moreover, the Union filed an opposition to the Agency's exceptions with the Authority on March 5, 1998, which we find below was timely filed. As the Union received a copy of the exceptions and filed a timely opposition, there is no basis on which to conclude that the Union's ability to respond to the Agency's exceptions was harmed in any way. In these circumstances, we decline to dismiss the [ v55 p351 ] Agency's exceptions on procedural grounds. See SSA, East Liverpool, 54 FLRA at 145-46.
2. The Union's opposition was timely filed.
Once a party is served with a copy of exceptions to an arbitration award, that party has 30 days from the date of such service to file its opposition with the Authority. [n4] See 5 C.F.R. § 2425.1. In the instant case, the Agency's statement of service indicates that the exceptions were served by "personal mail" on January 30, 1998. If the Agency actually served the Union on January 30, then any timely opposition would have been due no later than March 2, 1998. The Union filed its opposition with the Authority on March 5, 1998.
By Order dated March 25, 1998, the Authority directed the Union to show cause why its opposition should be considered, and directed the Agency to provide proof of service on the Union. In its response to the Authority's Order, the Union asserts that it did not receive a copy of the Agency's exceptions until February 9, 1998. In support, the Union provides a copy of the Agency's exceptions, with a receipt date of February 9, 1998, as well as numerous affidavits.
The Agency also filed a response to the Authority's Order. In its response, the Agency concedes that it provided the Union with a copy of its exceptions on February 9, 1998, but asserts that this was an "additional copy" to the one previously provided through interoffice personal mail on January 30. Agency Response to Show Cause Order at 2. The Agency did not provide the Authority with any documentation supporting its assertion that it served the Union on January 30.
Section 2429.27(b) of the Authority's Regulations provides:
Service of any document or paper under this subchapter, by any party, . . . shall be accomplished by certified mail, first-class mail, commercial delivery, or in person. Where facsimile equipment is available, service by facsimile of documents described in § 2429.24(e) is permissible.
Under section 2429.27, interoffice mail is not a valid, recognized mode of service. See, e.g., American Federation of State, County and Municipal Employees, Local 2478 and U.S. Commission on Civil Rights, 20 FLRA 164, 164-65 (1985) (Order Dismissing Petition for Review). Thus, the Agency's alleged service of January 30, via interoffice "personal mail," does not comport with the Authority's service requirements.
Additionally, the Union provides affidavits indicating that it was not served on January 30, and the Agency offers no proof, as requested by the Authority in its Order, that it served the Union on January 30. Other than its statement that it dropped the copy of its exceptions into the interoffice mail, the Agency has not established that the Union actually received the exceptions on January 30. Rather, the weight of the evidence, coupled with the fact that interoffice delivery is not a recognized, valid method of service under the Authority's Regulations, supports finding that the Union did not receive a copy of the Agency's exceptions until February 9. Applying the 30-day time limit set forth in section 2425.1(c) of the Authority's Regulations, the Union's opposition to the Agency's exceptions had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than March 11, 1998. Accordingly, the Union's opposition, which was filed March 5, 1998, is timely, and we will consider that submission in resolving the Agency's exceptions.
IV. Positions of the Parties
The Agency claims that the award fails to draw its essence from the parties' MOU, the flexiplace guidelines that were negotiated along with the MOU, and the parties' national collective bargaining agreement. The Agency argues that the Arbitrator expanded the negotiated 30-day window for employees to apply for the pilot project as well as the number of employees of the grievant's position classification authorized to participate in the pilot project. See Exceptions at 5 (quoting Union Ex. 10 (MOU) and J. Ex. 7 (pilot project guidelines)). By so doing, the Agency asserts that the Arbitrator modified the terms of the MOU, in violation of Article 25, Section 7 of the national collective bargaining agreement. [n5]
The Agency also contends that "the awards of backpay and liquidated damages are not proper reme- [ v55 p352 ] dies under law." Id. at 5. With respect to back pay under the Back Pay Act, the Agency argues that the Arbitrator failed to find that "but for some contractual violation the grievant would have received the overtime pay." Id. Specifically, according to the Agency, the evidence fails to establish that: (1) the grievant "was or would have been available and able to work . . . overtime"; or (2) "overtime would have been approved[.]" Id. at 5, 6. The Agency maintains that, consequently, the evidence does not meet the test for an award of back pay under the Back Pay Act.
With respect to liquidated damages under the FLSA, the Agency contends that liquidated damages are generally not awarded where an "employer's action . . . was taken in good faith, which . . . is supported by reasonable grounds for believing that the action complied with the FLSA[.]" Id. at 6 (citing Peters v. City of Shreveport, 818 F.2d 1148, 1165-67 (5th Cir. 1987)). "The Agency asserts that it acted properly and in good faith when it denied the grievant's request to work at home[.]" Id.
The Union asserts that the Agency's exceptions "merely constitute the Agency's dissatisfaction with the Arbitrator's award and are an attempt to relitigate the grievance." Opposition at 6. The Union maintains that there is no basis for finding the award deficient because the "[e]xceptions have not demonstrated any violation of law, rule, or regulation." Id.
The Union contends that the Agency's argument that the award of backpay and liquidated damages is contrary to law, is "without merit." Id. at 5. According to the Union, the Agency acted in bad faith when it denied the grievant's request to work at home, "including overtime[.]" Id. The Union maintains that the Arbitrator did not exceed her authority by awarding back pay under the Back Pay Act.
V. Analysis and Conclusions
A. The award draws its essence from the parties' agreement.
The Authority will find an arbitration award deficient as failing to draw its essence from the parties' agreement when the appealing party establishes that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement as to "manifest an infidelity to the obligation of the arbitrator"; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (DOL).
The Arbitrator determined that the Agency's refusal to allow the grievant to work at home under the Agency's Flexiplace Work at Home Pilot Project violated Article 3 and Article 10 of the parties' national collective bargaining agreement. These contract provisions, and the MOU establishing the pilot project, have been the subject of other arbitration awards reviewed by the Authority. See, e.g., American Federation of Government Employees, Local 3615 and Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 54 FLRA 494 (1998) (Local 3615); footnote 3, supra. It is apparent that arbitrators are construing these provisions differently. Id. at 501. However, as pointed out in Local 3615, arbitrators are not bound by another arbitrator's award, because of the well-established principle that arbitration awards are not precedential. Id. (citing International Federation of Professional and Technical Engineers, Local 28, Lewis Engineers and Scientists Association and National Aeronautics and Space Administration, Lewis Research Center, Cleveland, Ohio, 50 FLRA 533, 536-37 (1995); U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1043 (1991)). As applied in Local 3615, this principle led to rejecting a union's exception to an award that had denied three grievants' claims that they would have been allowed to participate in the flexiplace pilot program. In that case, the union relied on another award where, like the Arbitrator's award here, a similar grievance had been sustained.
The question before the Authority is not how the Authority would construe these provisions at issue, but whether the Arbitrator's interpretation is irrational, implausible, unfounded, or evidences a manifest disregard of those provisions. We are not persuaded that the Arbitrator's conclusion that, because the grievant was not treated the same as other similarly situated employees who requested to work at home, the Agency violated sections of Article 3 and Article 10 of the parties' agreement, is irrational, implausible, or unconnected to the wording of the agreement. See DOL, 34 FLRA at 577. Nor, by rejecting the Agency's defense that the pilot project had expired, do we find his interpretation of the MOU, based on his unchallenged findings about the Agency's actions, irrational, implausible, or unconnected to the wording of the MOU. See id. Accordingly, we deny the Agency's exception. [ v55 p353 ]
B. The award is not inconsistent with the Back Pay Act, but the portion of the award granting remedies under the FLSA is contrary to law.
When a party's exception challenges an arbitration award's consistency with law, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based upon the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See National Treasury Employees Union, Chapter 50 and U.S. Department of the Treasury, Internal Revenue Service, Carolina District, Charlotte, North Carolina, 54 FLRA 250, 253 (1998) (IRS, Carolina District). Because the Agency's exceptions challenge the Arbitrator's award under the Back Pay Act and the FLSA, we apply de novo review to the Arbitrator's legal conclusions, but we defer to the Arbitrator's factual findings underlying those conclusions.
1. The award is not contrary to the Back Pay Act, 5 U.S.C. § 5596.
Under the Back Pay Act, an award of back pay is authorized only where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218 (1998). A violation of a collective bargaining agreement provision constitutes an unjustified or unwarranted personnel action under the Back Pay Act. See American Federation of Government Employees, Local 1286, Council of Prison Locals and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Ashland, Kentucky, 51 FLRA 1618, 1621 (1996).
Apart from its essence claim, which we reject above, the Agency does not dispute the Arbitrator's finding that the Agency violated the parties' agreement. Because a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action, we find that the award satisfies the first requirement under the Back Pay Act.
With regard to the second requirement for back pay awards, the Authority has found that missed overtime pay constitutes a withdrawal or reduction of an employee's pay, allowances, or differentials. See U.S. Department of the Treasury, U.S. Customs Service, Portland, Oregon and National Treasury Employees Union, Chapter 156, 54 FLRA 764, 770-71 (1998). The Agency contends, however, that the evidence fails to establish that the grievant would have been able to work overtime, or that management would have approved such overtime. The Arbitrator's factual findings, based on the evidence before him, were to the contrary. Specifically, the Arbitrator found that the grievant would have been permitted to work up to 17 hours of overtime per week, and that "but for" the Agency's unwarranted personnel action, the grievant "would not have suffered this monetary reduction." Award at 16 (internal quotes omitted). In effect, the Agency's exception challenges the Arbitrator's factual findings in this regard. [n6] The Authority defers to an arbitrator's factual findings. See IRS, Carolina District, 54 FLRA at 253. As the Arbitrator's factual findings support his legal conclusion that the Agency's violation of the parties' agreement resulted in withdrawal of overtime pay to the grievant, we find that the award satisfies the second requirement of the Back Pay Act. Accordingly, we conclude that the award is not contrary to the Back Pay Act. [n7]
2. The award of FLSA compensatory and liquidated damages is deficient because it is contrary to law.
As relevant here, the FLSA and its implementing regulations require agencies to compensate an employee for all hours he or she works in excess of 40 hours a [ v55 p354 ] week at a rate equal to one and one-half times the employee's hourly regular rate of pay. See National Treasury Employees Union and Federal Deposit Insurance Corporation, 53 FLRA 1469, 1470 n.2 (1998) (FDIC). The FLSA also provides that "[a]ny employer who violates the provisions of [the FLSA] . . . shall be liable to the employee or employees affected in the amount of their unpaid overtime compensation, . . . and in an additional equal amount as liquidated damages." 29 U.S.C. § 216. The Arbitrator found that the violation of the parties' agreement supported monetary relief under the FLSA, and that the Union met the standard for recovery under the FLSA because it introduced evidence providing a "reasonable inference of hours worked" -- 17 hours per week. Award at 17.
The Agency argues the grievant is not entitled to liquidated damages because the Agency acted in good faith and reasonably. 29 U.S.C. § 260 provides, in pertinent part:
if the employer shows . . . that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA] . . . the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title.
Section 260 "establishes a presumption that an employee who is improperly denied overtime shall be awarded liquidated damages, unless the employer shows that `the act or omission giving rise [to the violation of the FLSA] was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA].'" FDIC, 53 FLRA at 1481 (citations omitted).
Finding that the FLSA has been violated is, of course, a necessary predicate to any award of liquidated damages based on the employer's failure to establish it acted in good faith. Cf. Nash v. Resources, Inc., 982 F. Supp. 1427, 1436 (D.Or. 1997). Because, for the reasons that follow, there is no basis on which to conclude that the Agency has violated the FLSA, it is not necessary to examine whether, in rejecting the Agency's good faith defense, the Arbitrator made the necessary findings under section 260.
Under the FLSA, employees are entitled to be paid at the statutory overtime rate when they "work" in excess of 40 hours in a given week. See Reich v. New York City Transit Authority, 45 F.3d 646, 651 (2d Cir. 1995) (emphasis supplied). In this case, the Arbitrator found that, if the Agency had not denied the grievant's request to work at home she would have worked in excess of 40 hours a week. Award at 16-17. The fact that an employee has been denied an opportunity to work overtime does not constitute a violation of the FLSA. See Riley v. Dow Corning Corp., 767 F. Supp. 735, 743 (M.D.N.C. 1991). Therefore, the award does not support any damages under the FLSA, and must be modified to vacate the award of compensatory and liquidated damages under the FLSA.
The award is modified to vacate the award of compensatory and liquidated damages under the FLSA. The Agency's other exceptions are denied.
Article 3 Employee Rights
Section 2 - Personal Rights
A. All employees shall be treated fairly and equitably in all aspects of personnel management, without regard to political affiliation, race, color, religion, national origin, sex, marital status, age or disabling condition, and with proper regard and protection of their privacy and constitutional rights.
See Award at 3.
Article 10 Hours of Work, Flextime, Alternative Work Schedules and Credit Hours
Section 3 -- General Overtime Provisions
A. Overtime shall be distributed to bargaining unit employees whose performance is fully successful.
B. Overtime shall not be distributed or withheld as a reward or penalty.
D. Employees covered by both the Fair Labor Standards Act and Title 5 U.S.C. shall receive overtime compensation in accordance with whichever benefit is greater.
Section 5 -- Scheduling Overtime -- Field Organization, Including OHA and OPIR (Field Organizations).
C. Overtime will be assigned fairly and equitably.
See id. at 4. [ v55 p355 ]
Dissenting Opinion of Member Cabaniss:
I respectfully dissent from the majority's determination that the Arbitrator's Award does not fail to draw its essence from the parties' agreement. I would find that the Arbitrator in essence rewrote the agreed upon terms of the parties' work at home agreement, or (in the alternative) disregarded pertinent provisions thereof, by awarding the grievant the ability to enter into a work at home arrangement. As a result, the Arbitrator's Award either does not represent a plausible interpretation of the agreement, or cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement, thereby rendering it deficient pursuant to 5 U.S.C. § 7122(a)(2) because it fails to draw its essence from the parties' agreement.
It is uncontested that the work at home pilot project, by its own terms, permitted only one paralegal specialist (like the grievant) at a time to have a work at home arrangement, and that one (and the original) paralegal specialist was already operating under his or her work at home arrangement throughout this entire period. It is also uncontested that the work at home pilot project, by its own terms, expired in approximately October 1993, roughly two years before the grievant in this matter sought to obtain a work at home arrangement for herself, with the original participants permitted to continue on with their own work at home arrangements.
In examining the record before her, the Arbitrator examined the terms and provisions of the expired MOU as to eligibility for participation, and then examined the grievant's personal circumstances and work record against those criteria. In finding that Article 3 of the parties' agreement was violated, the Arbitrator made these findings (in reverse order): the grievant falls within the established eligibility criteria of the pilot project; the Agency would be unjustly enriched by not permitting the grievant to have a work at home arrangement, and therefore the grievant "deserves inclusion" in that program; and the Agency, by permitting the original eight employees to continue with their work at home arrangements, was engaging in an "illicit act" which precluded the Agency from now arguing that the program had expired. Award at 11-13.
Thus, the Arbitrator found the original work at home pilot project to still be an existing term and condition of employment. I would find that this aspect of the Arbitrator's Award fails to draw its essence from the parties' agreement, based upon the express expiration date of the MOU permitting the establishment of work at home arrangements. Consequently, I would set the Award aside in its entirety. However, even if the pilot project were considered to be still ongoing, I would still find that granting the grievant a work at home arrangement fails to draw its essence from the parties' agreement.
As already noted, the Arbitrator applied the project's criteria against the grievant's personal and professional record and found that the grievant was eligible for the program. However, at that juncture the Arbitrator committed error by not adhering to those other provisions of the pilot project (which she had just found to still be in effect), which impose numerical limitations on the number of employees who can have a work at home arrangement. As discussed, supra, the terms of the work at home program permitted only one paralegal specialist at a time to have a work at home arrangement, and that one paralegal specialist entitlement was already being used by someone other than the grievant.
Having found that the pilot project was still available to employees, the Arbitrator is obligated to enforce all of the provisions contained therein rather than only portions thereof. Failing to do so constitutes reversible error as the award fails to draw its essence from the parties' agreement. See, e.g., United States Small Business Administration and American Federation of Government Employees, Local 2951, 55 FLRA 179, 182 (1999), citing to other Authority decisions also setting aside awards for the same deficiency.
Thus, even if there had been some form of improper treatment against the grievant by the Agency, the express terms of the work at home program would not permit the grievant to have a work at home arrangement at this time. However, as noted earlier, I would hold that the work at home program is not open to additional employees at all by virtue of expiration of the test program.
Footnote # 1 for 55 FLRA No. 56
Footnote # 2 for 55 FLRA No. 56
Footnote # 3 for 55 FLRA No. 56
The Arbitrator relied on the award of Arbitrator Robert P. Kaplan who found that, although the pilot project had formally ended in October of 1993, certain employees continued to work under the same terms and conditions that were established under the pilot project. The Authority denied exceptions filed by the Agency to Arbitrator Kaplan's award in Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia and American Federation of Government Employees, Local 3615, 53 FLRA 998 (1997).
Footnote # 4 for 55 FLRA No. 56
The date of service is the date the opposition is deposited in the U.S. mail or is delivered in person. See 5 C.F.R. 2429.27(d). A 5-day extension is added to the 30-day time limit for filing the opposition if the exceptions are served by mail. See 5 C.F.R. §§ 2429.22, 2429.27(d).
Footnote # 5 for 55 FLRA No. 56
According to the Agency, Article 25, Section 7 provides that "[t]he arbitrator shall have no power to add to, subtract from, disregard, alter or modify any terms of th[is] agreement." Exceptions at 5. However, this provision appears in Article 25, Section 6 of the parties' agreement. See Exceptions, Attachment 6 (J. Ex. 1). Therefore, for purposes of this decision, we will examine Article 25, Section 6 of the parties' national agreement.
Footnote # 6 for 55 FLRA No. 56
Footnote # 7 for 55 FLRA No. 56
In one respect, the Arbitrator's award is, on its face, contrary to the Back Pay Act and its implementing regulations. The Arbitrator awarded overtime pay plus interest under the Back Pay Act, and overtime pay under the FLSA, and liquidated damages. This is clearly inconsistent with basic entitlement rules under the Back Pay Act. See 5 C.F.R. § 550.101(c) (employees entitled to overtime pay under the FLSA are not also entitled to overtime pay under title 5). See also Lanehart v. Horner, 818 F.2d 1574, 1576 (Fed. Cir. 1987) (if the FLSA provides an employee with a greater amount of overtime pay than that provided under title 5, the employee is entitled to the amount provided by the FLSA, not title 5); American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 375 (1991) (same). Cf. Parker v. Burnley, 703 F. Supp. 925 (N.D.Ga. 1988) (employees are not entitled to both prejudgment interest and liquidated damages). Because we find below that the Arbitrator's award of FLSA damages is deficient, it is not necessary for the Authority to address this issue.