U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Office of NOAA Corps Operations, Atlantic Marine Center, Norfolk, Virginia and International Brotherhood of Electrical Workers (Authority decision, September 23, 1999)

Read the official release (flra.gov)

FLRA remand decision. The Authority remands the arbitration award for further findings on the backpay recovery period and liquidated damages. This decision does not end the underlying proceeding and is not presented as a final order starting the judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

NOAA electronic technicians claimed unpaid standby time while serving aboard ships at sea. The Authority upheld the arbitrator's finding that the technicians qualified for standby compensation under the Fair Labor Standards Act because they had to remain aboard, limit their activities, and be ready for immediate repairs. It left intact the dismissal of nine untimely grievances and the award of future standby pay. For the four timely grievances, however, limiting backpay to the filing date conflicted with the Act's two-year recovery period, or three years for a willful violation. The Authority remanded for findings on the proper recovery period and any liquidated damages. Chair Segal concurred, while Member Wasserman would also have held the nine rejected grievances timely under the statutory filing period.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a), 29 U.S.C. §§ 216(b) and 255(a), and 5 C.F.R. § 551.431.
• Outcome: Standby-pay entitlement upheld; recovery period and liquidated damages remanded.
• Key point: A timely FLSA grievance requires consideration of the statutory recovery period rather than backpay beginning only on the filing date.

Full text (FLRA public release)

[ v55 p816 ]

55 FLRA No. 141

U.S. DEPARTMENT OF COMMERCE

NATIONAL OCEANIC AND ATMOSPHERIC

ADMINISTRATION, OFFICE OF NOAA CORPS

OPERATIONS, ATLANTIC MARINE CENTER

NORFOLK, VIRGINIA

(Agency)

and

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL 80

(Union)

0-AR-3041

_____

DECISION

September 23, 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 Robert W. Foster filed by both the Agency and the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. Both the Union and the Agency filed oppositions to the other's exceptions.

The Arbitrator denied in part and sustained in part a consolidated grievance concerning 13 grievants. The grievance alleged that, under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., the grievants are entitled to compensation for standby duty, as defined by 5 C.F.R. § 551.431(a)(1). The Arbitrator awarded compensation for standby duty, retroactive to the filing date of the grievances, to four grievants whom he determined had timely filed grievances. The Arbitrator denied the claims of nine grievants on the basis that they were not timely filed. The Arbitrator also granted prospective pay to all electronic technicians for all future standby duty from the date of the award.

For the following reasons, we deny the Agency's exceptions that the award is contrary to 5 U.S.C. § 5545(c)(1) and to 5 C.F.R. § 551.431(a)(2). We also deny the Union's exceptions that the Arbitrator's timeliness determination does not draw its essence from the parties' agreement and that the award fails to draw its essence from the parties' agreement. We grant the Union's exception with respect to the appropriate statute of limitations for an award of backpay and find that 29 C.F.R. § 255(a) is controlling. The award is remanded to the parties for resubmission to the Arbitrator, absent settlement, to determine the appropriate recovery period under 29 U.S.C. § 255(a) to be applied in computing the award of backpay and to decide the amount of liquidated damages, if any, consistent with this decision.

II. Background and Arbitrator's Award

A. Background Facts

The grievants are electronic technicians who serve rotations at sea aboard Agency ships to provide repair and maintenance of all electronic equipment on board. While at sea, the ships operate 24 hours a day, 7 days a week. This schedule necessitates the continuous operation of the electrical equipment essential to the ship's mission. Most of the ships have only one electronic technician aboard.

The parties stipulated that the grievants "are nonexempt employees under the Fair Labor Standards Act." Hearing Transcript at 13, Attachment 7 to Agency's Exceptions. The grievants claimed that they are in a standby duty status while assigned to sea duty, and that they are entitled to compensation for standby duty retroactive to the date of their individual employment with the Agency. The filing dates of the individual grievances ranged from the date sea duty began up to 6 months after a grievant's last sea duty. The remedy sought was backpay for all grievants for all standby time worked from the date of the grievant's employment with the Agency and for all future time spent in a standby duty status while on sea duty. The Agency denied nine of the grievances as untimely because those grievances were not submitted within 5 calendar days of the completion of the grievants' respective sea duty rotations as required by the parties' agreement. [n2] The Agency denied the remaining four grievances on the grounds that [ v55 p817 ] assignment to sea duty is an ordinary, inherent part of the position and there was no evidence that standby duty status was officially ordered, assigned or approved.

The grievances were submitted to arbitration, and the Arbitrator framed the issue as follows:

Whether the Agency violated the Agreement, and/or governing regulations incorporated therein by reference, by failing to pay the grievants standby pay? If so, what is the appropriate remedy?

Award at 2.

At the arbitration hearing, testimony reflected that in addition to their normal work hours, the grievants generally work regularly scheduled overtime, including up to 2 hours of overtime per day during the week and 8 hours of overtime on Saturday and 8 hours of overtime on Sunday. Additionally, several of the grievants testified that they were on-call 24-hours a day and expected to be regularly "called out" after work hours and regularly scheduled overtime, to fix electronic failures requiring immediate attention. Id. at 5-6. They also testified that while they were allowed to watch movies or read during off-hours, they were not permitted to drink alcohol or take any medication that would impair their ability to respond to callbacks.

B. Arbitrator's Award

The Arbitrator found unpersuasive the Agency's argument that the grievants were not entitled to compensation for standby duty without authorization by the Agency head or approval by the Office of Personnel Management (OPM). The Arbitrator found that the orders that "sent the [grievants] to this assignment calling for standby duty, necessarily incorporates by implication orders creating standby status." Id. at 14.

The Arbitrator found that "non-exempt federal employees are entitled to standby pay while in a standby status computed under the so-called 'two-thirds rule' which presumes 16 hours of work and 8 hours for eating and sleeping in a 24-hour period, resulting in compensation for 16 hours." [n3] Id. at 10. The Arbitrator, in applying the provisions contained in 5 C.F.R. § 551.431(a)(2), governing standby duty under the FLSA, concluded that "grievants do serve in a standby duty status while at sea." Id. at 11. [n4] Specifically, the Arbitrator found that: (1) the assigned ship on which the grievants work is their designated post of duty as contemplated by the regulation; (2) the grievants perform their work anywhere on the ship where there is electronic equipment; and (3) because the grievants are at sea and they are not allowed to consume alcohol or medication that would hinder their ability to respond promptly, the grievants' activities are "substantially limited." Id. at 12. The Arbitrator also found that the grievants were required to "remain in a state of readiness" to perform call-out repair work. Id. at 13-14.

According to the Arbitrator, Detling v. U.S., 432 F.2d 462 (Ct. Cl. 1970) (Detling) cited by the Union, is "factually parallel" to the instant case. Award at 12. Detling concerned licensed merchant marine engineers who were found to be in a standby status when they were required to be confined to the ship while in port in order to respond to on board calls. In Detling, the court found that the plaintiffs were entitled to recover 8 hours per day overtime for all port watches to which they were assigned. Here, the Arbitrator determined that the grievants are required to remain in a state of readiness at all times, as they are "called back after their regular duty hours with a high degree of frequency in order to perform essential work . . . , [and their] response must be immediate [as] no one else on board the ship can take the [grievants'] place[.]" Id.

The Arbitrator also referred to Naval Amphibious Base, Little Creek, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 445, 446 (1984) (Naval Amphibious Base, Little Creek), for the proposition that geographic isolation alone is insufficient to support standby pay. However, the Arbitrator found that "[t]he obvious rule of that case that geographic isolation alone is insufficient to support standby pay, is clearly distinguished from the [grievants] in this case who are required to remain in a state of readiness to perform expected call-out emergency repair work as a continuing obligation of their job." Award at 13-14.

Finally, the Arbitrator found that nine of the grievances were not timely filed under the parties' agreement. The Arbitrator determined that "the negotiated [ v55 p818 ] agreement between th[e] parties govern[s] the grievance procedure, including, of course, the express provisions limiting the time for initiating [the] grievances[.]" Id. at 14. Specifically, the Arbitrator stated that the parties' agreement requires that grievances be filed within 5 days after the conclusion of sea duty, but only four of the 13 grievants filed their grievances within 5 days after concluding sea duty.

The Arbitrator concluded that four grievances were timely filed under the parties' agreement and awarded those grievants backpay retroactive to the filing date of these grievances. The Arbitrator further concluded that the electronic technicians were entitled to standby pay for all future occasions as covered by the award from the date of the award.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the award is deficient on two grounds. First, the Agency maintains that the award of standby pay is contrary to 5 U.S.C. § 5545(c)(1) because it was not authorized by the head of the Agency or approved by OPM, and because the remedy imposed is improper.

The Agency asserts that, "the [g]rievants, if awarded the standby premium pay ordered by the Arbitrator, would forfeit all of the overtime they currently earn[,]" because 5 U.S.C. § 5545(c) prevents an employee from receiving both standby and overtime pay for the same hours of work. Agency's Exceptions at 16 n.12. According to the Agency, the Claims Court held that under 5 C.F.R. § 550.142, if an employee is entitled to standby pay and overtime pay, an agency may not pay the employee at the lower standby pay to avoid paying overtime compensation. See DeCosta v. United States, 22 Cl. Ct. 165, 167 (1990); Manning v. U.S., 10 Cl. Ct. 651, 660-64 (1986).

The other Agency exceptions contend that the award granting compensation for standby duty is contrary to 5 C.F.R. § 551.431(a)(2)(i), (ii), and (iii). The Arbitrator found that the grievants met the requirements for standby duty, such as being substantially limited in activity and having to hold themselves in a state of readiness, as defined in that provision, set forth at n.4 above. The Agency claims that the Arbitrator made per se findings that because the grievants work on the ship, the ship as a whole is their post of duty, and because the grievants are at sea, their activities are "substantially limited." Agency's Exceptions at 7-10. The Agency argues that the Arbitrator "erred by finding that the [g]rievants, in accordance with 5 C.F.R. § 551.431(a)(2)(iii), were required to hold themselves in a state of readiness to perform work." Id. at 13.

B. Union's Opposition

First, the Union contends that 5 U.S.C. § 5545(c)(1) is not applicable in this case. According to the Union, the Authority, in U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and American Federation of Government Employees, National Immigration and Naturalization Council, 44 FLRA 343, 351 (1992) (DOJ, INS), found that 5 U.S.C. § 5545(c)(1) is one means of compensating employees in standby duty status, but it is not the exclusive basis for compensating employees in standby duty status.

Second, the Union contends that the Arbitrator's finding that the grievants are entitled to compensation for standby duty within the meaning of 5 C.F.R. § 551.431(a)(2) is not contrary to law, rule, or regulation. The Union maintains that although the Agency frames its arguments as a legal issue, the basic arguments concern disagreement with the Arbitrator's factual findings.

The Union further asserts that the Arbitrator's findings are consistent with case law pertaining to the determination of standby duty. According to the Union, the Supreme Court in Skidmore v. Swift & Co., 343 U.S. 134 (1944) (Skidmore) addressed the issue of when an employee is in standby duty status in general as "whether the time is spent predominantly for the employer's benefit or for the employee's [benefit.]" Union's Opposition at 6. Additionally, the Union claims that the grievants' activities here are more constrained than those of the engineers in Detling and the grievants are more likely to be called to perform work.

C. Union's Exceptions

The Union contends that the award limiting the compensation retroactive to the date of filing is not consistent with the Authority's application of the decision in Carter v. Gibbs, 909 F.2d 1450 (Fed. Cir. 1990), cert. denied sub nom. Carter v. Goldberg, 111 S. Ct. 46 (1990) (Carter v. Gibbs). Specifically, the Union argues that the backpay recovery period is not governed by the parties' agreement, but by either the 6-year statute of limitations under the Barring Act, 31 U.S.C. § 3702, or the 2-year or 3-year statute of limitations provided under the FLSA.

The Union maintains that "[e]mployees should not be both required to file under a negotiated grievance procedure . . . and then be denied the full range of remedies available to them under the statute." Union's [ v55 p819 ] Exceptions at 6. According to the Union, as the "Arbitrator stands in the shoes of other judicial/administrative bodies under Carter v. Gibbs, the statute of limitations applicable under the regulations for filing claims against the government becomes applicable here." Id. at 7. The Union asserts that the Authority, in American Federation of Government Employees, Local 22 and Department of the Navy, Naval Base, Norfolk, Virginia, 48 FLRA 708, 712 (1993) (Naval Base, Norfolk), "concluded [that] a six[-]year statute of limitations was applicable . . . because of the requirement under Carter v. Gibbs, that the grievants proceed under the contract rather than in federal court under the [FLSA]." Union's Exceptions at 7.

Alternatively, the Union claims that the FLSA, 29 U.S.C. § 255(a), provides a 2-year or 3-year statute of limitations for the period of recovery, depending on whether the action was willful. See Union's Exceptions at 9. The Union also maintains that the FLSA, 29 U.S.C. § 216(b), provides an entitlement to liquidated damages in addition to backpay. According to the Union, the Agency, by not paying overtime, demonstrates that the action was willful and requires payment of backpay for the 3-year period prior to the date the grievances were filed as well as an equal amount in liquidated damages.

Additionally, the Union argues that the Arbitrator's award, by finding nine of the grievances untimely, fails to draw its essence from the parties' agreement. According to the Union, the time period for filing under Article I, Section 11, paragraph B.2 begins to run on the date when a grievant learned that he had been aggrieved, that is, became aware of his entitlement to standby pay or when the employee "consider[ed] himself/herself aggrieved." Union's Exceptions at 10.

Finally, the Union contends that the portion of the award granting standby pay for all future occasions fails to draw its essence from the parties' agreement because the award is only effective from the date of the award rather than the dates of the filing of the grievances. According to the Union, in the time that passed between the filing of the grievances and the Arbitrator's award, some of the grievants performed another sea duty rotation. Additionally, as pertinent to the nine employees whose grievances were found to be untimely, the Union asserts this recovery date for prospective pay penalizes the nine grievants who, although according to the Arbitrator did not file timely in this instance, did file prior to their next sea duty.

D. Agency's Opposition

The Agency contends that the recovery period of the backpay award is consistent with the decision in Carter v. Gibbs. The Agency maintains that the court in Carter v. Gibbs found that "where [the parties' agreement] provides for a negotiated grievance procedure covering FLSA claims, the negotiated grievance procedure is the exclusive forum in which covered employees may pursue those claims, notwithstanding that the FLSA provides a judicial remedy for FLSA violations." Agency's Opposition at 6. The Agency also argues that the award, limiting the backpay remedy to the date the grievances were filed, was within the Arbitrator's discretion. According to the Agency, the Union's reliance on Naval Base, Norfolk is misplaced. The Agency contends that the Authority has given wide latitude and discretion to the Arbitrator in fashioning remedies and has declined to "adopt a bright-line rule that any particular statute of limitations is definitively applicable [to] these types of cases." Id. at 9.

Alternatively, the Agency maintains that if the Union argues that the grievants' rights under the FLSA cannot be curtailed, then the 2-year backpay period set forth by the FLSA must apply. According to the Agency, the Union is claiming, for the first time in its exceptions, that the Agency's action was willful and that the Agency is liable for liquidated damages under 29 U.S.C. § 216(b). The Agency asserts that as the Union did not present these claims to the Arbitrator, they cannot now be considered under 5 C.F.R. § 2429.5.

The Agency asserts that the Arbitrator was correct in his determination that only four of the grievances were timely filed. According to the Agency, the other nine grievances were filed from 6 weeks to 7 months after the grievants completed sea duty, well beyond the 5 day time limit for filing a grievance related to sea duty. The Agency argues that the Arbitrator's interpretation of the parties' agreement is not implausible or irrational and that there is no basis to find the Arbitrator's timeliness determinations deficient.

In response to the Union's argument that the award of prospective pay from the date of the award fails to draw its essence from the parties' agreement, the Agency contends that arbitrators have wide latitude and discretion in fashioning remedies, and thus, the Arbitrator acted within his discretion in ordering prospective relief from the date of the award. [ v55 p820 ]

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law, Rule or Regulation

Under section 7122(a)(1) of the Statute, an arbitration award will be found deficient if it conflicts with any law, rule or regulation. Overseas Education Association and U.S. Department of Defense Dependents Schools, Arlington, Virginia, 51 FLRA 1246, 1251 (1996). As the Agency's exceptions involve the award's consistency with applicable law, the Authority reviews questions of law raised by the award and the Agency's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1. The Award Is Not Contrary to 5 U.S.C. § 5545(c)(1)

The Agency contends that as the head of the Agency and OPM had not approved compensation for standby duty, the award granting such is contrary to 5 U.S.C. § 5545(c)(1). The Agency also argues that under 5 C.F.R. § 550.142 and pertinent case law, the grievants would actually receive less pay if they were paid on standby duty status because the grievants would forfeit all of the overtime pay they currently earn. [n5]

As noted by the Union, the Authority has previously determined that compensation for time spent in a standby status is provided for under both 5 U.S.C. § 5545 and under 5 U.S.C. § 5542. See DOJ, INS, 44 FLRA at 351-52. As explained in DOJ, INS there are two independent provisions authorizing standby pay. The provisions of 5 C.F.R. § 550.141-143, implementing standby pay under 5 U.S.C. § 5545(c)(1), provide for up to a 25 percent premium for "regular," annualized standby (non-FLSA) pay. The provisions of 5 C.F.R. § 551.431 implement standby pay under the FLSA. See 5 C.F.R. § 551.101. Compensation for standby duty under the FLSA is either regular pay or overtime pay at the rate of time and a half.

In the instant case, the Agency stipulated that the grievants are nonexempt FLSA employees and the parties have consistently addressed the merits of the standby pay issue under the FLSA. Accordingly, in addition to the availability of standby pay under section 5545, the law and regulations governing standby duty under the FLSA also are applicable. By law, such employees are to receive pay under whichever pay system provides the greater entitlement--section 5545 or under the FLSA. See 5 C.F.R. § 551.513. In this case, whether or not overtime for the grievants was approved by OPM under section 5545(c), overtime pay for standby duty was available to them under the FLSA, provided the circumstances set forth in 5 C.F.R. § 551.431(a)(1) or (a)(2) are fulfilled.

Because the FLSA and its implementing regulations provide overtime pay for standby duty for the employees here, the Agency's reliance on 5 U.S.C. § 5545(c)(1) and its implementing regulations set forth at 5 C.F.R. § 550.141-143 is misplaced.

2. The Award is Not Contrary to 5 C.F.R. § 551.431(a)(2)

5 C.F.R. § 551.431 establishes criteria for determining when an employee is in a standby (paid) or an on-call (unpaid) duty status. As relevant here, in order to be in a standby duty status under 5 C.F.R. § 551.431(a)(2), three criteria must be satisfied: (1) the employee must be restricted to his or her designated post of duty; (2) have his or her activities substantially limited; and (3) be in a state of readiness to perform work. See American Federation of Government Employees, Local 1897 and U.S. Department of the Air Force, Eglin Air Force Base, Florida, 51 FLRA 1290, 1291-92 (1996) (Eglin Air Force Base). The Arbitrator, in applying the provisions contained in 5 C.F.R. § 551.431(a)(2), specifically found that the grievants served in a standby duty status. See Part II. B. of our decision, above.

Here, the Arbitrator based his conclusions that the employees who had timely filed grievances were entitled to standby duty pay on specific findings of fact. First, the Arbitrator found that the "designated post of duty [to which the grievants are restricted] is the ship to which the [grievants] are assigned and where they perform . . . work[.]" Award at 11. The Arbitrator also noted that not only are the grievants' "activities substantially limited" by the geographical fact that they are at sea, but they are also precluded from consuming alcohol [ v55 p821 ] or sleep-inducing medication as it would inhibit their ability to promptly respond when called upon. Id. at 11-12. Finally, the Arbitrator determined that the grievants are required to remain in a state of readiness at all times, as they are "called back after their regular duty hours with a high degree of frequency in order to perform essential work . . . [and their] response must be immediate [as] no one else on board the ship can take the [grievants'] place[.]" Id. at 12.

Based on the Arbitrator's specific factual findings, to which we defer, we find that the Arbitrator's conclusion that the grievants were in a standby duty status is consistent with 5 C.F.R. § 551.431(a)(2), and the case law interpreting such regulation. 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, 255 (1998) (the Authority defers to an arbitrator's findings of fact). Consequently, the award does not conflict with 5 C.F.R. § 551.431(a)(2), and therefore, is not deficient under section 7122(a)(1) of the Statute.

3. Limiting the Retroactive Award of Backpay to the Date of the Filing of the Grievances Is Contrary to 29 U.S.C. § 255(a).

The Union claims that the award is contrary to section 255(a) because the Arbitrator limited the time period for the recovery of backpay to the filing date of the grievances. According to the Union, that provision requires the application of either a 6-year statute of limitations under the Barring Act, as applied by the Authority previously, or the 2-year or 3-year statute of limitations as set forth under the FLSA.

In National Treasury Employees Union and Federal Deposit Insurance Corporation, 53 FLRA 1469, 1485 (1998) (FDIC), the Authority determined that the FLSA statute of limitations set forth in 29 U.S.C. § 255(a) applies to an award of backpay for a claim brought under the FLSA. [n6] The Authority determined that it would "no longer follow SSA II and its progeny to the extent this precedent holds that an arbitrator, resolving a claim brought under the FLSA, is not bound to apply 29 U.S.C. § 255(a) to an award of backpay." FDIC, 53 FLRA at 1485.

In reaching the above decision, the Authority made several findings that serve as benchmarks in the instant case. In particular, the Authority found that: (1) nothing in Carter v. Gibbs indicates that the Back Pay Act, and not the FLSA, applies to remedies for violations of the FLSA; (2) "[b]ecause the FLSA itself is a waiver of sovereign immunity, and independently provides a statutory right to money damages, . . . [t]he application of the Back Pay Act is not necessary to award backpay for violations of the FLSA;" FDIC, 53 FLRA at 1488; and (3) reducing the grievants' period of recovery, by ignoring the FLSA statute of limitations, deprives the grievants' of their statutory right to recover for either a full 2-year or 3-year period.

Consistent with the foregoing, the award limiting the recovery period for backpay to the filing date of the grievances is contrary to 29 U.S.C. § 255(a). See id. Because the Arbitrator did not apply the recovery period under the FLSA, the Arbitrator did not make any findings of fact on the issue of willfulness on the part of the Agency as pertinent to the 2-year or 3-year statute of limitation.

The Authority's ability to review de novo the legal conclusions arrived at in an award is dependent on the sufficiency of the record before it. Army Research, 53 FLRA at 1710. When an award fails to contain factual findings necessary to assess an arbitrator's legal conclusions, and the findings cannot be derived from the record, the award will be set aside and the case remanded to the parties for submission to the arbitrator so that the requisite findings can be made. Id.

Therefore, because the Arbitrator did not make any findings of fact on the issue of willfulness, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, for a determination as to the appropriate statute of limitation under 29 U.S.C. § 255(a) to be applied in computing the award of backpay.

B. Liquidated Damages Under the FLSA

Under section 2429.5 of the Authority's Regulations, [n7] the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 32 [ v55 p822 ] (1995). There is no indication in the record that the Union argued to the Arbitrator, as it has in its exceptions, that the FLSA provides an entitlement to liquidated damages in addition to backpay. [n8] See Union Exceptions at 9.

However, under the FLSA, liquidated damages may be awarded in addition to monies owed employees for unpaid overtime compensation. See 29 U.S.C. § 216(b). An employee is not required to plead or specifically request liquidated damages when seeking relief under the FLSA. However, although liquidated damages are presumed, they may be reduced or eliminated if an employer shows that it acted in good faith and reasonableness when it nevertheless violated the FLSA. See Reich v. Tiller Helicopter Services, Inc., 8 F.3d 1018, 1030-31 (5th Cir. 1993); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 463-65 (D.C. Cir. 1976).

As set forth above, we have determined that this case must be remanded to the parties for resubmission to the Arbitrator, absent settlement, for a determination as to the appropriate statute of limitations under 29 U.S.C. § 255(a) to be applied in computing the award of backpay. To make that determination, the Arbitrator must find whether the Agency's violation of the FLSA constituted a willful violation. In conducting his inquiry to arrive at that determination, the Arbitrator must conclude whether the Agency acted in good faith and reasonableness or whether the violation was willful. Therefore, we will remand the issue of liquidated damages to the parties for resubmission to the Arbitrator, absent settlement, to determine whether liquidated damages should be awarded to the grievants, and whether such liquidated damages, if any, should be limited or reduced based on the Agency's conduct.

C. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement

1. The Arbitrator's Timeliness Determinations Draw Their Essence from the Parties' Agreement

The Union argues that the Arbitrator's award finding nine of the grievances untimely filed under the agreement fails to draw its essence from the parties' agreement. [n9] The Arbitrator determined that all of the grievants "were fully aware at the commencement of their sea duty of the factual circumstances under which they claim standby pay." Award at 15. The parties' agreement required that such grievances be filed within 5 days of the conclusion of sea duty, but only four of the 13 grievances were filed within that time limit. The Arbitrator concluded that nine of the grievants did not timely file their grievances under the parties' agreement.

An arbitrator's determination of the procedural arbitrability of a grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination. [n10] American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange [ v55 p823 ] Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995). In this case, the Union disputes the Arbitrator's determination that nine of the grievances were not timely filed under Article I, Section 11, paragraph B.2 of the parties' agreement. Therefore, the Union is directly challenging a procedural arbitrability determination. Accordingly, we deny this exception.

2. The Award Granting Prospective Pay from the Date of the Award Draws Its Essence from the Agreement

In order for an award to be found deficient because it does not draw its essence from the collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990) (OSHA).

The Union contends that the award of prospective pay fails to draw its essence from the parties' agreement because it is prospective only from the date of the award, not the date the grievances were filed. However, the Union does not refer to a specific provision in the parties' agreement which addresses this issue. Thus, the Union has not demonstrated that the award fails to draw its essence from the agreement. See OSHA, 34 FLRA at 575-76.

V. Decision

The Agency's exceptions that the award is contrary to 5 U.S.C. § 5545(c) and 5 C.F.R. § 551.431(a)(1) are denied. The Union's exceptions that the award fails to draw its essence from the parties' agreement are denied. The award of backpay retroactive only to the date the grievances were filed is contrary to 29 U.S.C. § 255(a). With regard to the appropriate recovery period under the FLSA and the matter of liquidated damages, the award is remanded to the parties for resubmission to the Arbitrator, absent settlement, for further action consistent with this decision.

APPENDIX I

5 U.S.C. § 5545(c)(1) provides:

(c) The head of an agency, with the approval of the Office of Personnel Management, may provide that-

(1) an employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour. Premium pay under this paragraph is determined as an appropriate percentage, not in excess of 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law) (or, for a position described in section 5542(a)(3) of this title, of the basic pay of the position), by taking into consideration the number of hours of actual work required in the position, the number of hours required in a standby status at or within the confines of the station, the extent to which the duties of the position are made more onerous by night, Sunday, or holiday work, or by being extended over periods of more than 40 hours a week, and other relevant factors[.]

29 U.S.C. § 255(a) provides:

Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended
[29 U.S.C.A. § 201 et seq.], the Walsh-Healey Act [41 U.S.C.A. § 35 et seq.], or the Bacon-Davis Act [40 U.S.C.A. § 276a et seq.]--

(a) if the cause of action accrues on or after May 14, 1947-may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless 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[.]

File 1: Authority's Decision in 55 FLRA No.
141 and Appendix I

File 2: Opinion of Chair Segal

File 3: Opinion of Member Wasserman

Footnote # 1 for
55 FLRA No. 141

• Authority's Decision

The separate opinions of Chair Segal concurring and Member Wasserman dissenting in part are set forth at the conclusion of this decision.

Footnote # 2 for
55 FLRA No. 141

• Authority's Decision

Article I, Section 11, Paragraph B.2, Step 1 of the parties' agreement states, in pertinent part that,

Whenever an employee considers himself/herself aggrieved that employee shall discuss the matter with (or may submit the matter in writing to) the supervisor within 5 days of the date of the action or condition giving rise to the grievance . . . .

Attachment 3 to Agency's Exceptions.

Footnote # 3 for
55 FLRA No. 141

• Authority's Decision

This "two-thirds rule" is set forth in 5 C.F.R. § 551.432.

Footnote # 4 for
55 FLRA No. 141

• Authority's Decision

5 C.F.R. § 551.431(a)(2) provides as follows: (a) An employee will be considered on duty and time spent on standby duty shall be considered hours of work if:

. . . .

(2) The employee, although not restricted to the agency's premises:

(i) Is restricted to his or her living quarters or designated post of duty;

(ii) Has his or her activities substantially limited; and

(iii) Is required to remain in a state of readiness to perform work.

Footnote # 5 for
55 FLRA No. 141

• Authority's Decision

The payment of standby duty pay on an annual basis is authorized under 5 U.S.C. § 5545(c)(1). In 5 C.F.R. § 550.142, the conditions are set forth under which regularly scheduled standby duty pay may be paid on an annual basis.

Footnote # 6 for
55 FLRA No. 141

• Authority's Decision

29 U.S.C. § 255(a) entitled, "Statute of Limitations," provides that any action begun under the FLSA "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[.]"

Footnote # 7 for
55 FLRA No. 141

• Authority's Decision

Section 2429.5 provides, in pertinent part:

The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before .
. . the arbitrator. The Authority may, however, take official notice of such matters as would be proper.

Footnote # 8 for
55 FLRA No. 141

• Authority's Decision

We note that the Union, in its closing brief to the Arbitrator, specified the relief it sought:

The appropriate relief in this case is that the [A]gency be ordered to compute the amount of standby time for the grievants for at least the last [6] years and pay them overtime for that period of time. The time to be considered standby will be the time that the grievants were on the ship while the ship was operating and the grievants were not performing actual work which has already been reimbursed. It would not include times when the ship was in port or time when the ships were at sea for less than a day.

In addition, the Union requests that the Arbitrator order the [A]gency to pay overtime pursuant to the 2/3's rule for all future occasions where the grievants are at sea and required to hold themselves in readiness to perform work.

Union's Closing Brief at 26-27. The Union also requested that the Arbitrator retain jurisdiction over the issue of attorney fees. The Union made no mention of liquidated damages.

Footnote # 9 for
55 FLRA No. 141

• Authority's Decision

In contrast to the dissent, we do not address whether the Arbitrator's determination that nine grievances were not timely filed under the parties' agreement is contrary to law. Our dissenting colleague addresses this issue by construing two Union statements as raising it. In our view, the dissent makes too much of the Union's statements.

In this regard, the first statement is part of the Union's "Statement of Facts," and not part of any argument. See Union's Exceptions at 4. The second statement, see id. at 9, is within an argument expressly directed to the Arbitrator's remedy. See id. at 5. Moreover, the Union's argument specifically recognizes the difference between the time limits for filing grievances and the time limits on recovery of backpay for timely filed grievances. The Union expressly states, in this connection, that the Arbitrator's remedy
--the length of the backpay recovery period--is contrary to law because "statutes of limitations dictate how far back the remedy goes" and apply in this case "[r]egardless of the time limits for filing the grievances . . . ." Id. at 6.

Additionally, the only Union exception concerning the timeliness of the nine grievances rejected by the Arbitrator as untimely contests the award--solely and expressly--on essence grounds. According to the Union, "the time limits for filing a grievance begin to run 'Whenever an employee considers himself/herself aggrieved . . . . '" Id. at 10. In support of this argument, the Union cites the time limits set forth in the parties' collective bargaining agreement--not the FLSA or other law. The Union emphasizes that the "time limit provisions of the negotiated [a]greement come into play when the employee is aware of his entitlement under the . . . agreement" Id. We note that the Agency also viewed the exceptions this way; the Agency's opposition responds only to whether the timeliness determination draws its essence from the parties' agreement. See Agency's Opposition at 11-13.

Footnote # 10 for
55 FLRA No. 141

• Authority's Decision

We note that the position asserted by our dissenting colleague on this issue would require the Authority to overturn longstanding Authority precedent regarding the review of procedural arbitrability questions. See National Gallery of Art, Washington, D.C. and American Federation of Government Employees, Local 1831, 48 FLRA 841, 845 (1993) (Authority rejected union contention that arbitrator was to apply FLSA statute of limitations rather than time limit in parties' agreement).

[ v55 p824 ]

Chair Phyllis N. Segal, concurring:

For the reasons stated in the Authority's decision, I agree that the award in this case is deficient as inconsistent with the Fair Labor Standards Act (FLSA), 29 U.S.C. § 255(a), and must be remanded for determinations regarding liquidated damages as well as the appropriate recovery period for backpay. I also agree with the Authority's resolution of the other exceptions to the award. Finally, I agree with Member Cabaniss that there is no claim before the Authority challenging, as contrary to law, the Arbitrator's procedural arbitrability determination that nine of the grievances were not timely filed under the parties' agreement. For the reasons stated in the Authority's decision, this case does not present the issue, reached by our dissenting colleague, of the extent, if any, to which long-standing precedent deferring to arbitral determinations of procedural arbitrability should be reversed when the determination is in the context of contractual filing periods for FLSA claims.

I write separately to note that dictum in National Treasury Employees Union and Federal Deposit Insurance Corporation, 53 FLRA 1469, 1494-95 n.17 (1998) (FDIC), relied on in the dissent, did not examine statutory language that may have bearing on disposition of the procedural arbitrability issue resolved in the dissent. See Dissent at 3.

The Authority suggested in FDIC that prior precedent, holding that parties can agree to a recovery or filing period different from that set forth in section 255(a), may be incorrect. 53 FLRA at 1494-95 n.17 (cited in Dissent at 3). In FDIC, the Authority stated that there was no contention that the parties had agreed to a backpay recovery period different from section 255(a), and therefore found it unnecessary to determine whether such a contractual provision would be enforceable. Id. In this case, there likewise is no contention that the parties have agreed to a contract provision setting forth the backpay recovery period. Thus, as in FDIC, it also is unnecessary to address the enforceability of such a provision here.

The Authority's comments in FDIC concerning prior precedent did not address the fact that, as a result of the 1994 amendment to 5 U.S.C. § 7121(a)(1), arbitration is no longer the exclusive forum to remedy FLSA claims that fall within the coverage of a negotiated grievance procedure. Section 7121 previously provided that the negotiated grievance procedure was the "exclusive procedure for resolving grievances which fall within its coverage." As amended, section 7121(a)(1) provides that the negotiated grievance procedure is only "the exclusive administrative procedure for resolving grievances which fall within its coverage." (Emphasis added.) Thus, the inclusion of alleged FLSA violations within the scope of a negotiated grievance procedure is no longer a bar to direct judicial enforcement of rights under the FLSA. Cf. FDIC, 53 FLRA at 1486 n.13 (union argued that the 1994 amendment to the Statute "effectively overruled Carter v. Gibbs," 909 F.2d 1452 (Fed. Cir. 1990), where court held that employees' access to negotiated grievance procedures to resolve FLSA claims barred judicial resolution of such claims).

The ability of employees to pursue FLSA claims in court, in lieu of or even after arbitration, may affect whether there is a legal impediment to enforcing a contractual backpay recovery period -- or a contractual time period for filing claims -- that differs from the period provided under the FLSA. Cf. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (alleged violation of Age Discrimination in Employment Act subject to compulsory arbitration pursuant to agreement in securities registration application); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987) (alleged violations of Securities Exchange Act and RICO subject to compulsory arbitration under brokerage agreement); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (alleged violations of various antitrust and unfair competition statutes subject to compulsory arbitration pursuant to sales agreement). Indeed, it is not clear from the record in this case whether the grievants whose claims were found untimely by the Arbitrator could have subsequently filed their claims directly in court.

Certainly, section 7121(a)(1), as amended, should be examined and addressed by the Authority, with the aid of parties' arguments, in determining the effect of contract provisions concerning filing FLSA claims and recovering FLSA remedies. To the extent that my dissenting colleague implies that I have reached a conclusion on the question he resolves, he is mistaken. My point is simply that, contrary to the dissent, I believe that the Authority should not resolve this significant issue without requesting and considering briefs from the parties, and conducting a careful statutory analysis. The policy objective of applying the law in an evenhanded [ v55 p825 ] manner, Dissent at 4, is certainly laudable, even when application of this goal is complex. [n1] However, it does not, in my view, satisfy our responsibility to carefully analyze the law. Because the question of whether the parties' contractual filing period is enforceable has not been challenged in the Union's exceptions, and no party has provided arguments on the merits of this significant issue, I leave resolution of this for another day, where the issue is raised and argued.

File 1: Authority's Decision in 55 FLRA No. 141 and Appendix I

File 2: Opinion of Chair Segal

File 3: Opinion of Member Wasserman

Footnote # 1 for
55 FLRA No. 141

• Opinion of Chair Segal

For example, the dissent points out that the Authority's decision in FDIC to apply the 2/3 year recovery period in the FLSA will prevent arbitrators from applying the 6-year limitation period in the Barring Act. Dissent at 4. However, as the dissent acknowledges, application of the FLSA backpay recovery period in FDIC resulted in a longer backpay period than had been granted by the arbitrator and, as a result, more -- not less -- backpay to employees. See FDIC, 53 FLRA at 1495 (Authority concluded that the arbitrator's "time limit on the . . . award of backpay, which does not extend to the full period of recovery required in 29 U.S.C. § 255(a), is deficient"). See also id. at 1494-95 n.17 (noting precedent where the Authority upheld awards limiting backpay to periods of 20 and 30 days). Thus, the doctrine established in FDIC is a double-edged sword: in some situations its application increases awards to employees; in others it decreases an agency's liability.

[ v55 p826 ]

Opinion of Member Wasserman, dissenting in part:

I agree with much of the foregoing decision, but dissent with respect to the assessment of the Union's exception regarding the timeliness of nine of the grievances. I believe that the Union has raised a contrary to law argument, and that the FLSA and our decision in FDIC dictate that we grant the exception and find the grievances to be timely.

Although the Union certainly raises an essence claim pertaining to the timeliness issue, Unions Exceptions at 10, it also puts the legality of the timeliness determination before us. In particular, the Union states that "if the Union is correct and the statute provides the limitation period, then the grievants who [the Arbitrator] found untimely for backpay purposes would be entitled to backpay/overtime." Union's Exceptions at 4. [n1] This argument is underscored by the Union when it states that, "The time limits for filing for a violation of the statute and regulations is set by Congress and cannot be curtailed by either the agency or the Union." Id. at 9. These contentions place the timeliness issue in the context of the appropriate legal standard, not just contract language.

In addition, the Union argues that the Barring Act, with its six year limitations period should apply to arbitration. The Union states that the "[A]rbitrator stands in the shoes of other judicial/administrative bodies under Carter, the statute of limitations applicable under the regulations for filing claims against the government becomes applicable here." Id. at 7. Carter v. Gibbs required unions to take overtime claims through the grievance procedure, instead of to court. This was based upon the Federal Circuit's view that the Statute made the grievance/arbitration process the exclusive procedure for the resolution of work-related claims. In 1994, Congress amended section 7121(a)(1) to clarify that grievance procedures were the exclusive administrative procedures available to resolve grievances, thereby making it clear that overtime claims could still be filed in court. Regardless of the unions' and employees' option to take claims into court, I do not question the general proposition that an arbitrator in the federal sector stands in the shoes of the court whenever application of a law is the subject of the arbitration. Devine v. White, 697 F.2d 421, 438 (D.C. Cir. 1983) (federal sector arbitrators "police compliance with controlling laws, rules, and regulations"); Louis A. Johnson Veterans Administration Medical Center, Clarksburg, West Virginia and American Federation of Government Employees, Local 2384, 15 FLRA 347, 350 (1984) (because of the Authority's role in reviewing arbitration awards for consistency with law, "an arbitrator must perforce consider any relevant law, rule or regulation when fashioning a grievance arbitration award in the Federal sector"). Cf. Alexander v. Gardner-Denver Co. 415 U.S. 36, 53 (1973)(labor arbitrators [outside the federal sector] lack the "general authority to invoke public laws that conflict with the bargain between the parties").

The Union did not have the benefit of our decision in FDIC when it filed its exceptions, so it is fair to generalize its argument from the Barring Act to the FLSA - clearly the Union is stating that as a matter of law, and based upon the well established notion that Arbitrators are to apply law in the same manner as a court, the limitations period should apply in the context of arbitration. The Agency acknowledges the Union's legal claim when it contends that "if the Union is to be heard to argue that their rights under the FLSA cannot be curtailed by a bargained-for filing period, then they must be held to the statute of limitations provided for in the FLSA itself." Agency Opposition at 7. For these reasons, I view the Union's Exceptions as claiming that the Arbitrator's award as to the timeliness of the grievances is contrary to law.

I would grant the exception because 29 U.S.C.§ 255(a) controls the filing period for FLSA grievances, as well as the recovery period. Such an application is supported, if not compelled, by FDIC. I am unable to reasonably distinguish the recovery period application of section 255(a) from its filing period application. A U.S. district court has described the workings of section 255 as follows:

Under the FLSA, a cause of action accrues for overtime compensation at each regular payday immediately following the work week during which the services were rendered. [Citations omitted.] Thus, in the present case, plaintiffs' claims for overtime compensation accrued at each payday [ v55 p827 ] after the alleged overtime was worked. As each claim accrued, the 2-year limitations period of § 255 began to run.

Angulo et al. v. The Levy Company et al., 568 F. Supp. 1209, 1215 (USDC N.D. IL, 1983). As each claim accrues, the two year limitations period begins to run. Whether one reaches backward from the filing date for purposes of determining the amount of an award, or looks forward to determine how much time exists to file a claim, the recovery period and filing period are two sides of the same coin.

The Supreme Court has held that arbitration agreements, outside the collective bargaining context, are enforceable as to statutory claims that otherwise have judicial enforcement mechanisms. See e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (Age Discrimination in Employment Act subject to arbitration clause); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987) (claims under the Securities Exchange Act of 1934 are subject to arbitration clauses); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (antitrust laws subject to arbitration clauses) (Mitsubishi). The agreement to arbitrate claims does not mean that a party relinquishes substantive rights under the statute in question. Mitsubishi, 473 U.S. at 628.

A key question becomes whether the limitations period, for filing purposes, is a substantive right. In FDIC, we answered that question when we stated the following:

29 U.S.C.§ 255(a) is an integral part of the FLSA that operates as a substantive right under that Act. Generally, substantive rights afforded in a statute differ from procedural rights because substantive rights are incorporated into the negotiated grievance procedure. [Citation omitted.] In this respect, statutes of limitations are considered an integral part of the substantive rights afforded by a statute because time limitations on enforcing a statutory right not only bar recovery but extinguish the underlying rights and liabilities of the parties. [Citation omitted.]

FDIC, 53 FLRA at 1490. I recognize that in at least one case the Authority rejected an argument that section 255(a) preempted the negotiated filing period for grievances, U.S. Department of the Army Aviation Center, Fort Rucker, Alabama, 39 FLRA 1113 (1991) (Fort Rucker). However, I cannot avoid the impact of our analysis in FDIC when I assess whether timeliness of an FLSA grievance should be bound by the negotiated grievance time limit. Indeed, footnote 17 of FDIC was drafted in anticipation of the possibility of reversing contrary precedent and a decision on timeliness such as we face here. In particular, we noted that the Authority had previously rejected claims of deficiency "where an arbitrator followed the period limiting the filing of grievances that the parties set in their collective bargaining agreement, rather than the statute of limitations established in section 255(a)" and "point[ed] to the likelihood that this precedent was also wrongly decided." FDIC, 53 FLRA at 1494-95 n.17.

My concurring colleague notes that our opinion on this precedent "did not examine statutory language that may have bearing" on the issue. We were obviously aware of the amendment to section 7121, because we referred to it. See FDIC, 53 FLRA at 1486 n.13. I do not believe that the amendment to section 7121 compels another conclusion from the one I reach here. Moreover, I am unwilling to apply the law in an uneven manner. In FDIC, we ruled that arbitrators may no longer apply the six year recovery period of the Barring Act when awarding back pay to employees. Id. at 1494. While, in FDIC, that decision resulted in the agency having to pay for a longer period of time than required by the award, it prevents arbitrators from now applying the six year limitations period of the Barring Act, [n2] which had been done with some frequency in FLSA cases. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 49 FLRA 483, 488-89 (1994) (award granting recovery for six years under the Back Pay Act not deficient) (SSA III); American Federation of Government Employees, Local 22 and U.S. Department of the Navy, Naval Base, Norfolk, Virginia, 48 FLRA 708, 713-14 (1993) (award granting recovery for six years "under pertinent laws and regulations, including the Barring Act" not deficient) (Naval Base); SSA II, 47 FLRA at 829 (award granting recovery for 6 years under the Back Pay Act not deficient).

My colleague now suggests in her concurring opinion that applicable law would prevent unions from recovering up to six years of back pay for bargaining unit employees, but that the limits of the same statutory [ v55 p828 ] provision, 29 U.S.C. § 255(a), could be negotiated downward to the detriment of employees. In my view, the fact that employees may now have recourse to the courts, in addition to the option of grievance/arbitration, does not excuse arbitrators from having to apply the same substantive law as that applied by the courts nor suggest that unions can bargain away substantive rights under FLSA.

Given that the Authority has held that the FLSA limitation period affords substantive protections, I cannot distinguish between the substance of the limitations period and the substance of other protections that are not waivable. My concurring colleague suggests that even though we have said in FDIC that the limitations period is applicable as a matter of law, a union might be able to negotiate a shorter filing or recovery period. Does it follow that the union could also negotiate less than time and a half for overtime for non-exempt employees? I think not. After all, the law is the law, and the ability to vindicate rights in court does not excuse its enforcement in federal sector labor agreements and arbitration. To hold otherwise turns FDIC on its head, because it suggests that last year's precedent regarding the application of 29 U.S.C. § 255(a) is ready to be discarded in all respects except the reduction of the maximum back pay from six to two or three, or even fewer, years. Clearly, such an inequitable application of section 255(a), depending upon the beneficiary, cannot be intended.

In addition, our Statute was designed to establish symmetry in the resolution of cases that could go to more than one forum. For example, removal cases are appealed to the Federal Circuit, regardless of whether they are adjudicated by an arbitrator or the MSPB. Arbitration decisions can be set aside if they are contrary to law, which suggests to me that Arbitrators must apply the law in the same manner as the courts would. When we look at discrimination cases, for example, we apply the interpretive doctrines developed by the courts. See e.g., National Treasury Employees Union and National Treasury Employees Union, Chapter 48 and U.S. Department of the Treasury, Internal Revenue Service, Southeast Region, Richmond District, 54 FLRA 1197 (1998). Accordingly, the availability of court action to FLSA claimants should not affect their substantive rights in arbitration.

Finally, I do not view my conclusion as a deviation from our precedent on procedural arbitrability. I am well aware that procedural arbitrability determinations, such as timeliness, are not reviewed by the Authority absent some other, independent ground for doing so. See, e.g., American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army and Air Force Exchange Service, Dallas, Texas, 50 FLRA 184 (1995). In my view, a timeliness decision that is contrary to law would fall within the scope of another ground for evaluating the determination -- really no different from evaluating a procedural arbitrability decision on the basis of bias or fraud. I note that the Authority's rule on its review of procedural arbitrability is based on U.S. Supreme Court precedent that considered only grievances that entailed an interpretation of the collective bargaining agreement in determining such arbitrability questions. As a result, it would seem to follow that once the arbitrability determination is governed by law rather than the agreement, the Authority can review the legal contention. In fact, that approach is implicit in the analysis in Fort Rucker, 39 FLRA at 1115-16, which applied the FLSA directly (although with a different result), rather than limit the question to one of unreviewable procedural arbitrability. In that case, the Authority stated that "The Union has not shown...that time periods applicable to lawsuits under the [Fair Labor Standards] Act apply to grievances filed under a collective bargaining agreement." Id. As suggested in FDIC, I would abandon that conclusion here.

In sum, I would grant the Union's exception on timeliness, because the nine grievances at issue were timely filed within the statutory limitations period.

File 1: Authority's Decision in 55 FLRA No. 141 and Appendix I

File 2: Opinion of Chair Segal

File 3: Opinion of Member Wasserman

Footnote # 1 for
55 FLRA No. 141

• Opinion of Member Wasserman

As the majority notes, this statement appears under the heading of "Statement of Facts." However, the so-called statement of facts is really an introduction to the argument and includes the allegations that the remedy is contrary to "law, rules and regulations and particularly Carter v. Gibbs." Exceptions at 4. Clearly, the heading is a misnomer, and I would not so readily disregard the Union's argument because of an overly technical reading of its exceptions.

Footnote # 2 for
55 FLRA No. 141

• Opinion of Member Wasserman

If the Back Pay Act provides an "auxiliary measure," another result might be reached. See FDIC, 53 FLRA at 1492 n.16.