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47 FLRA No. 78

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Union)

0-AR-2376

_____

DECISION

June 9, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Henry L. Segal 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 Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Agency excepts to the Arbitrator's remedy award issued in connection with a prior award on the merits of the Union's grievances filed on behalf of Claims Examiners/Representatives (CRs), GS-105-9 and 10, and Claims Authorizers (CAs), GS-933-9 and 10. The Arbitrator awarded the grievants backpay, with interest, for a period of 6 years prior to the filing of the grievances and also awarded backpay for overtime work that was suffered or permitted by the Agency. For the following reasons, we will deny the Agency's exceptions to the Arbitrator's remedy award.

II. Background and Arbitrator's Award

The Union protested the Agency's decision to exempt CRs and CAs at grades GS-9 and 10 from coverage under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. In an award on the merits of the grievances, the Arbitrator ruled that the Agency had illegally designated the grievants as exempt from coverage under the FLSA on the ground that they were bona fide administrative employees. The Arbitrator ordered the Agency to treat the grievants as nonexempt from coverage under the FLSA and to pay them backpay for overtime pay to which they were entitled. The Agency filed exceptions to the Arbitrator's award with the Authority. The Authority denied those exceptions in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 44 FLRA 773 (1992) (SSA). In SSA, the Authority rejected the Agency's contentions that the award on the merits violated the Back Pay Act, 5 U.S.C. § 5596, and found that the Arbitrator had made the required finding that but for the Agency's improper designation of the grievants as exempt from FLSA coverage, the grievants would have received the FLSA compensation to which they were entitled.

In his award on the merits, the Arbitrator stated that he would retain jurisdiction over the question of a remedy pending the disposition of the Agency's exceptions to the award on the merits. Following the issuance of SSA on April 14, 1992, the Arbitrator considered briefs filed by the parties concerning the determination of the proper amounts of backpay to be awarded the grievants and issued a remedy award resolving the issues raised by the parties.

First, the Arbitrator determined the appropriate period of time for which the grievants were entitled to backpay. He rejected the Agency's contention that it was not required to pay any backpay for time prior to the issuance of the Arbitrator's award on the merits on May 3, 1991. The Agency argued before the Arbitrator that it had "acted in good faith reliance on the decisions and guidance provided by the Office of Personnel Management (OPM), the administrator for the FLSA, as it affects Federal employees." Award at 3. The Agency maintained that it was, therefore, relieved of liability for backpay for FLSA overtime to the grievants under 29 U.S.C. § 259(a) and (b).⁽¹⁾ The Arbitrator noted that the Authority had ruled on this issue in SSA and had determined that 29 U.S.C. § 259 was applicable only to an employer's reliance on rulings of the Administrator of the Wage and Hour Division of the Department of Labor and did not apply to reliance by Federal agencies on the FLSA regulations and rulings issued by OPM. The Arbitrator rejected the Agency's contention that it was relieved of FLSA liability because of its good faith reliance on Cervino v. Mathews, No. 76-1384, slip op. at 7 (E.D. Pa. July 13, 1978) (Cervino), in which the court held that a group of claims authorizers in grades GS-9 and 10 were properly exempted from the FLSA as administrative employees. The Arbitrator noted that the Agency's reliance on Cervino had been rejected in SSA and held that good faith reliance under 29 U.S.C. § 259 was not a defense to an assertion of FLSA liability by the Agency.

The Agency also contended before the Arbitrator that, in the event that he ruled that backpay liability began prior to May 3, 1991, the date of the merits award, such liability should extend back no longer than 2 years prior to that date in accordance with 29 U.S.C. § 255, which establishes a 2-year statute of limitations for claims under the FLSA. The Agency maintained that it had been in good faith compliance with existing law until May 3, 1991, and, therefore, the backpay period should extend back no earlier than May 3, 1989. The Union maintained that, even if a 2-year statute of limitations were applied, the 2-year period should extend back from the date of the grievances filed on behalf of the CRs and the CAs. The Arbitrator held that the FLSA statute of limitations was not applicable in this case. He rejected the Agency's contention that May 3, 1991, was "the key date" for determining periods of backpay and agreed with the Union that the applicable dates for establishing backpay entitlements under his award were "the dates of filing the grievances, December 16, 1987 for CRs and January 6, 1988 for CAs." Award at 7.

Additionally, the Agency argued that if the Arbitrator determined that retroactive pay for the CRs and CAs should be computed for a period commencing prior to May 3, 1989, the Agency should not be obligated to compute backpay prior to August 26, 1987, the date when the 60 days expired for seeking review of the decision of the United States Court of Appeals for the D.C. Circuit in American Federation of Government Employees v. Office of Personnel Management, 821 F.2d 761 (D.C. Cir. 1987) (AFGE v. OPM), "since any failure to pay FLSA overtime to CAs and CRs prior to that date could not have been an 'unjustified or unwarranted' personnel action until after the D.C. Circuit Court decision issued." Id. at 7-8. The Agency maintained that until AFGE v. OPM made clear that OPM guidance to agencies concerning the application of the FLSA to Federal employees must be in accordance with the FLSA regulations of the Department of Labor, the Agency had properly relied on OPM guidance and on Cervino to determine that the grievants were exempt from FLSA coverage. The Arbitrator rejected that argument and held that "[t]here is no legal basis for making the date of issuance of AFGE v. OPM . . . a relevant date for determining the start of a back pay period." Id. at 8.

The Union contended, as its primary position before the Arbitrator, that the grievants were entitled to backpay extending back to May 1, 1974, the date on which Federal employees became covered by the FLSA. As an alternative contention, the Union claimed that the grievants were entitled to backpay extending back 6 years before the dates the grievances were filed. The Arbitrator agreed with the Union's alternative contention and ruled that an appropriate period for determining backpay in this case is the 6-year period prescribed in 31 U.S.C. § 3702 (the Barring Act) and applied by the Comptroller General in deciding claims against the United States Government. The Arbitrator noted that following the decision of the United States Court of Appeals for the Federal Circuit in Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990), cert. denied sub nom. Carter v. Goldberg, 111 S. Ct. 46 (1990), in which the Court held that claims of Federal employees covered by collective bargaining agreements to benefits under the FLSA must be resolved under the negotiated grievance procedure, the Comptroller General no longer accepts the FLSA claims of such employees. The Arbitrator stated that an arbitrator "is not necessarily bound" to the 6-year claim period set forth in the Barring Act and "has discretion to set the period" for backpay. Award at 10. Nevertheless, he held that the Barring Act provided an appropriate backpay period in this case.

The Arbitrator rejected the Union's primary contention that the grievants were entitled to backpay from May 1, 1974. He found that the Union's reliance on International Association of Firefighters, Local 13 and Panama Canal Commission, General Services Bureau, Balboa, Republic of Panama, 43 FLRA 1012, 1026 (1992) (Firefighters), reconsideration denied, 44 FLRA 954 (1992) was misplaced because the factual situation in that case differed from the case before him. The Arbitrator noted that, in Firefighters, the parties had been in disagreement for a period of approximately 10 years over the entitlement of employees to FLSA overtime pay and the arbitrator in that case properly awarded backpay for that period of time. In contrast, the Arbitrator found that in the instant case, the record showed that the Union did not become actively involved in protesting the grievants' exemption from FLSA coverage "until a few years before the grievances were filed[.]" Award at 12. The Arbitrator concluded that, in the exercise of his discretion to determine backpay, "the appropriate period for computation of back pay for uncompensated FLSA overtime is that provided by Congress . . . in 31 [U.S.C. §] 3702(b)(1), six years." Id. at 13.

The Union contended before the Arbitrator that the grievants were entitled to liquidated damages under 29 U.S.C. § 216(b) and interest on backpay. The Arbitrator found that he had authority to award liquidated damages under the FLSA but he rejected the Union's claim for liquidated damages in this case. The Arbitrator held that although good faith reliance on the guidance of OPM would not constitute a defense to a charge of violating the FLSA under 29 U.S.C. § 259, such reliance would constitute a ground for not awarding liquidated damages pursuant to 29 U.S.C. § 260. He found that "the Agency was acting on the advice and directives of OPM from March 1977 to the instant arbitration proceeding." Id. at 18. He stated that he was "satisfied that the Agency has satisfied the 'good faith' and 'reasonable grounds' requirement of [29 U.S.C. § 260] to avoid liquidated damages." Id. at 19. The Arbitrator ruled that the grievants were entitled to interest on backpay in accordance with 5 U.S.C. § 5596(b)(2)(A) and (B).

The Union also contended before the Arbitrator that the grievants were entitled under 29 U.S.C. § 203(g) and 5 C.F.R. §§ 551.102 and 551.401(a)(2) to "overtime compensation for 'suffered or permitted' overtime." Id. at 20. The Arbitrator noted that 29 U.S.C. § 203(g) provides that "'Employ' includes to suffer or permit to work." Id. He rejected the Agency's contention that the remedy should not include overtime for time that the grievants were suffered or permitted to work because that was not an issue in the grievances. He ruled that "the grievances were sufficiently broad to cover 'suffered or permitted' overtime . . . ." Id. at 21. He also rejected the Agency's claim that grievances over overtime for time when employees were suffered or permitted to work must be litigated in individual grievances and not in an institutional grievance under the parties' collective bargaining agreement.

The Arbitrator held that difficulty in ascertaining the amounts of overtime pay due individual grievants was not a bar to the payment of backpay for overtime work. However, he ruled that the burden of proving that overtime work was suffered or permitted was on the grievants claiming overtime "and their initial proofs must consist of more than mere assertions." Id. at 24. The Arbitrator suggested a number of "guidelines" to assist the parties in ascertaining the proper amounts of overtime pay for individual grievants. Id. at 26. He made the following award:

1. The Agency shall pay back pay to Claims Representatives (CRs), GS 9 and 10, and Claims Authorizers (CAs), GS 9 and 10, for uncompensated Fair Labor Standards Act (FLSA) overtime (the difference between Title 5 overtime actually paid, if any, and FLSA overtime) for a back pay claim period running from six years prior to the filing date of the grievances. Accordingly[,] the claim period for CRs, GS 9 and 10, shall run from December 16, 1981 (Grievance No. FO-UMG-87-10, filed on December 16, 1987) and for CAs, GS 9 and 10, from January 6, 1982 (Grievance No. GC-UMG-88-01 filed on January 6, 1988).

2. Such uncompensated FLSA overtime for which back pay is to be paid shall include "suffered or permitted" overtime performed by the CRs, GS 9 and 10, and the CAs, GS 9 and 10, during the claims periods involved. The compilation of "suffered or permitted" overtime shall be subject to the procedural guidelines established by the Arbitrator, at Section 3 C. above.

3. Back pay shall include interest assessed as provided in the Back Pay Act at [5 U.S.C. § 5596(b)(2)(A) and (B)].

4. The Agency shall not be subject to liquidated damages.

5. The Arbitrator declines to issue an interlocutory order. However, he directs that if no appeals are filed with the [Authority] to this supplemental award the payment of back pay for uncompensated FLSA overtime hours which were authorized, as distinguished from "suffered or permitted" hours, shall not be delayed by the anticipated extensive time which will be required to determine "suffered or permitted" overtime hours eligible for back pay. If appeals are filed with the [Authority] and the [Authority] sustains the Arbitrator's determinations with respect to "suffered or permitted" overtime, the Arbitrator urges the [Authority] to include similar provisions to prevent delay of payment or uncompensated FLSA overtime for authorized overtime hours.

Id. at 28-29.

III. Positions of the Parties

A. The Agency

The Agency asserts that the award of backpay to the grievants for a period of 6 years prior to the filing of the grievances in this case is contrary to law and that the award of backpay should be made in accordance with the 2-year statute of limitations set forth in the FLSA at 29 U.S.C. § 255. The Agency maintains that it acted in good faith compliance with OPM regulations and Cervino. The Agency argues that the Arbitrator does not have discretion "to pick and choose from among various [F]ederal statutes in determining the appropriate period of compensation." Exceptions at 18.

The Agency contends that the Arbitrator's use of the Barring Act to establish a 6-year period for backpay is improper because the Barring Act does not apply to cases covered under "another law." 31 U.S.C. § 3702(b)(1)(A). The Agency maintains that the FLSA constitutes another law within the meaning of the Barring Act and that "the 2-year statute of limitations at 29 [U.S.C. §] 255(a) must govern the outcome of these grievances." Exceptions at 19. The Agency further contends that, even if the Barring Act were applicable in this case, the Union failed to follow the procedures required for tolling the time limits set forth in the Barring Act by requesting the General Accounting Office (GAO) to toll the time limits. The Agency notes that the grievances were filed on December 16, 1987, and January 8, 1988, and that Federal agencies were not given authority by GAO to toll the time limits until June 15, 1989. The Agency maintains that as there was no action taken by the Union prior to June 15, 1989, to toll the time limits pertaining to the grievances, "the earliest possible date to start from in applying the 6-year statute of limitations would be [June 15, 1989], rather than the two earlier dates on which the respective grievances had been filed." Id. at 23.

The Agency further asserts that the award is contrary to the Back Pay Act because the Arbitrator failed to establish that the Agency had committed an unjustified or unwarranted personnel action prior to the June 26, 1987, decision of the United States Court of Appeals for the D.C. Circuit in AFGE v. OPM. In support of this contention, the Agency maintains that, prior to that date, it had complied with all applicable legal and regulatory requirements governing application of the FLSA, including the regulations of OPM and Cervino, which was the only relevant court precedent at that time. The Agency contends that to require the computation of overtime prior to June 26, 1987, "would be unduly burdensome because of the lack of readily accessible data as well as being inconsistent with the requirements of law." Id. at 25.

The Agency also contends that the Arbitrator exceeded his authority by prescribing a remedy for overtime work by the grievants that was suffered or permitted by the Agency. The Agency contends that suffered or permitted overtime was not an issue in the grievances on the merits. The Agency also contends that the award fails to draw its essence from the collective bargaining agreement because the grievances before the Arbitrator were union-management grievances over the Agency's FLSA exemption policies and were not individual grievances intended to establish the entitlements of individual employees to FLSA compensation for overtime work that was suffered or permitted by the Agency.

Finally, the Agency contends that the award is contrary to law because the Arbitrator failed to apply 29 U.S.C. § 259 to excuse the Agency from liability under the FLSA. The Agency contends that it relied on the guidance of OPM and the ruling of the court in Cervino in finding that the grievants were exempt from FLSA coverage. The Agency claims that "any backpay now held due CRs and CAs should not be calculated any earlier than the first pay period beginning after the date of issuance of the [Arbitrator's award on the merits], May 3, 1991." Id. at 36. The Agency contends that the Authority's discussion and rejection of this argument in the decision in SSA constitutes "mere dictum which can be disregarded." Id. at 37. The Agency contends that SSA concerned only the merits of the grievances and that any discussion of remedy at that time was interlocutory and was not a matter before the Authority.

B. The Union

The Union asserts that the Arbitrator properly awarded backpay for a period retroactive to 6 years prior to the dates that the grievances were filed. The Union disputes the Agency's contention that the FLSA statute of limitations set forth in 29 U.S.C. § 255 is applicable in this case and maintains that the FLSA statute of limitations applies only to cases brought in Federal courts and not to cases involving Federal employees that are decided by arbitrators pursuant to Carter v. Gibbs. The Union notes that the Arbitrator "painstakingly considered and rejected [29 U.S.C. § 255(a)] as the appropriate or relevant limitations period" and determined that a 6-year period was appropriate for a case, such as this, that was decided administratively rather than judicially. Opposition at 10. The Union cites Firefighters, 43 FLRA 1012, and the Authority's denial of reconsideration of that decision at 44 FLRA 954, for the proposition that an arbitrator in cases decided under the Back Pay Act is not restricted by the Barring Act and can award backpay for as many as 10 years if it is determined that backpay is warranted for that period of time.

The Union maintains that the Arbitrator correctly determined that the dates of the filing of the grievances on December 16, 1987, and January 6, 1988, were the dates from which to compute the claims period for backpay. The Union states that "[t]he dates of the decisions in AFGE v. OPM, Carter v. Gibb[s], or Cervino, simply have no legal significance as to the tolling of the statute of limitation (claims period) for the underlying backpay." Opposition at 24-25 (footnote omitted).

The Union also asserts that the Arbitrator properly determined the Agency's backpay liability to the grievants under the Back Pay Act based on the Agency's violation of the FLSA. The Union disputes the Agency's claim that it did not commit an unwarranted personnel action under the Back Pay Act and cites the Authority's finding in SSA that the Arbitrator's award on the merits was not contrary to the Back Pay Act. The Union maintains that "the Agency is merely disagreeing" with the Authority's decision. Id. at 27.

As to the Agency's contentions that the Arbitrator exceeded his authority and that the award fails to draw its essence from the parties' agreement because the Arbitrator considered a remedy for overtime work that was suffered or permitted by the Agency, the Union asserts that the award "is fully supported by the record and law in this case." Id. at 29. The Union contends that the original grievances in this case requested full relief for the improper denial of FLSA overtime pay and the Union asserts that overtime pay for suffered and permitted work "is merely a component in the 'hours of work' of an employee, not a separate heretofore unknown category of overtime." Id. at 33.

Finally, the Union disputes the Agency's contention that 29 U.S.C. § 259 is applicable in this case and that the Authority's rejection of that argument in SSA is dictum. The Union asserts that the issue of 29 U.S.C. § 259 was fully discussed by the Authority in its decision on the Arbitrator's award and that the Authority's decision was a holding on the merits of that issue. Further, the Union maintains that even if the Authority had not settled that issue, the Agency's claim that it has no liability under 29 U.S.C. § 259 is without merit because that provision is not applicable to FLSA cases involving Federal employees. The Union cites various court decisions holding that 29 U.S.C. § 259 applies only to FLSA cases in which employers rely on regulations and guidance by the Administrator of the Wage and Hour Division of the Department of Labor.⁽²⁾

IV. Analysis and Conclusions

For the following reasons, we find that the Agency's exceptions provide no basis for finding the award deficient.

A. Statute of Limitations

We reject the Agency's contention that the Arbitrator's award of backpay for a period of 6 years retroactive from the dates the grievances were filed is contrary to law. Initially, we find that the Arbitrator was not required to apply the statute of limitations set forth in 29 U.S.C. § 255(a) as the Agency contends. The Arbitrator, consistent with Carter v. Gibbs, resolved the dispute in this case in accordance with the Back Pay Act and the negotiated grievance procedure contained in the parties' collective bargaining agreement. Nothing in the Back Pay Act limits the period of time for which an award of backpay can be made. The Authority has held that under the Back Pay Act, an arbitrator can award backpay to remedy "an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials" that an employee otherwise would have received. See, for example, Firefighters, 43 FLRA at 1027-28 (arbitrator properly awarded backpay for FLSA overtime pay for retroactive period of approximately 10 years); U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania and America Federation of Government Employees, Local 2004, 40 FLRA 186, 193 (1991) (Back Pay Act does not specify a required retroactive period for backpay for environmental differential pay); U.S. Department of the Navy, Naval Avionics Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1744, 37 FLRA 406, 408 (1990) (arbitrator properly declined to establish a 6-year retroactive period for backpay); and Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1103 (1990) (award of backpay retroactive to 1978 held not contrary to Back Pay Act). The Agency has not cited and we are not aware of any law or precedent that requires arbitrators in deciding backpay cases for Federal employees under the FLSA to use the FLSA statute of limitations in 29 U.S.C. § 255(a) instead of the Back Pay Act in determining appropriate remedies for agency violations.

We also find that the award is not deficient on the ground that the Arbitrator used the Barring Act to establish a 6-year retroactive period for an award of backpay to the grievants. We have consistently held that the Barring Act applies only to claims brought before the Comptroller General and there is no requirement for arbitrators to apply the Barring Act in fashioning awards of backpay under the Back Pay Act. See Firefighters, 43 FLRA at 1027-28. However, nothing prevents arbitrators from establishing the appropriate period for determining entitlement to backpay, including using the 6-year period of the Barring Act. Arbitrators are given a great latitude and discretion in fashioning remedies. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 98, 101 (1993). In this case, the Arbitrator noted that he was not required to apply the Barring Act in determining the retroactive period for backpay. However, he determined, considering the circumstances of the case, that a 6-year period was appropriate for determining backpay for the grievants' loss of FLSA overtime pay. We find nothing in that determination that is contrary to law.

Accordingly, we conclude that there is no basis for finding the award deficient on the ground that it is contrary to 29 U.S.C. § 255(a) or the Barring Act.

B. The Award Is Not Contrary to the Back Pay Act

We find no basis for finding the award deficient on the ground that the Arbitrator failed to establish that the Agency had committed an unjustified or unwarranted personnel action prior to the June 26, 1987, decision of the United States Court of Appeals for the D.C. Circuit in AFGE v. OPM. In SSA, we found that the Arbitrator had made the findings required under the Back Pay Act for an award of backpay to the grievants. See SSA, 44 FLRA at 798. Further, we fully considered the Arbitrator's finding that the Agency erroneously interpreted the OPM regulations and held that there was no basis for finding the award deficient on that ground. The Agency's contention that the Arbitrator's remedy award is deficient because the Arbitrator failed to find that the Agency committed an unwarranted or unjustified personnel action is merely an attempt to relitigate its contention in SSA that the award on the merits was contrary to the Back Pay Act and the Authority's decision that the merits award was not contrary to the Back Pay Act. The Agency's argument does not provide a basis for finding the award deficient or for us to reconsider the decision in SSA. See, for example, U.S. Department of the Interior, Bureau of Reclamation, Missouri Basin Region and International Brotherhood of Electrical Workers, Local 1759, 43 FLRA 380, 383 (1991) (Bureau of Reclamation). Consequently, we will deny the Agency's exception that the award is contrary to the Back Pay Act.

C. The Arbitrator Did Not Exceed His Authority

We find no merit in the Agency's contention that the Arbitrator exceeded his authority by awarding backpay for FLSA overtime work suffered or permitted by the Agency. An arbitrator exceeds his or her authority by, among other things, resolving an issue not submitted to arbitration or awarding relief to persons who did not file a grievance or who did not have the Union file a grievance on their behalf. See American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma, 46 FLRA 1316, 1319-20 (1993). It is well established that, in the absence of a stipulation by the parties, an arbitrator's formulation of the issues is accorded substantial deference. For example, U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 FLRA 94, 97 (1991).

The parties in this case did not stipulate the issues to be resolved by the Arbitrator. In the merits award, the Arbitrator "framed the issue" as whether the grievants were properly exempted from FLSA coverage and "[i]f not, what should the remedy be?" SSA, 44 FLRA at 777. The Arbitrator deferred resolving the issue of remedy until the resolution of the Agency's exceptions to the merits award. In his remedy award, the Arbitrator noted that the parties met "and in consultation with the Arbitrator identified the remaining issues concerning back pay." Award at 2. The Arbitrator then discussed the issues so identified. He entitled the third issue "Availability of 'Suffered or Permitted' Overtime" and noted that "[t]he Union takes the position that the Agency must pay back pay for 'suffered or permitted' overtime." Id. at 20. The Arbitrator specifically rejected the Agency's argument "that the grievances themselves never raised the issue of 'suffered or permitted overtime.'" Id. at 21. We find that the Arbitrator's remedy award is responsive to the issues identified by the parties in consultation with the Arbitrator. Consequently, the Agency's exception fails to establish that the award is deficient on the ground that the Arbitrator exceeded his authority.

D. The Award Draws Its Essence from the Agreement

The Agency also contends that the award fails to draw its essence from the parties' collective bargaining agreement because the issue of compensation for suffered or permitted overtime work must be resolved as employee grievances under Article 24, Section 9 of the parties' collective bargaining agreement instead of as union-management grievances under Article 24, Section 10. We find no merit in this contention. In order to demonstrate that an award fails to draw its essence from the agreement, the Agency 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 U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 105 (1992).

The Agency has not shown that the Arbitrator's award is deficient based on any of the above tests. The issue formulated by the Arbitrator concerned all CAs and CRs and the relief to which they were individually entitled. The issue was not limited to the resolution of the broad issue of FLSA exemption only. The Arbitrator rejected the Agency's argument that grievances over overtime work that was suffered or permitted by the Agency must be filed as individual grievances under the parties' agreement and found that suffered or permitted overtime "is part and parcel of the uncompensated overtime and is part of the remedy just as the 1 1/2 times overtime pay is part of the remedy." Award at 22. In our view, the Agency's contention constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1143 (1992). Accordingly, we conclude that the Agency has failed to establish the award fails to draw its essence from the parties' agreement.

E. The Award Is Not Contrary to 29 U.S.C. § 259

The Agency's contention that the award is contrary to 29 U.S.C. § 259 provides no basis for finding the award deficient. We discussed a similar contention in SSA and found that 29 U.S.C. § 259 applies only to excuse employers from FLSA liability who rely in good faith on rulings of the Administrator of the Wage and Hour Division of the Department of Labor. We concluded that "[a]s the regulations applied by the Agency in this case were issued by OPM and not the Administrator of the Wage and Hour Division, the Agency cannot use the defense in 29 U.S.C. § 259." SSA, 44 FLRA at 799. Contrary to the Agency's contention, that holding was a ruling on the merits of its exception concerning the application of 29 U.S.C. § 259 and not merely dictum. We note that subsequent to our decision in SSA, the United States Court of Appeals for the Federal Circuit reached a similar conclusion regarding 29 U.S.C. § 259 in Berg v. Newman. The Court stated that the fact that OPM is not mentioned in section 259 "prevents the Government from both adopting and shielding itself from liability for faulty regulations." Id. at 504. The Agency is merely attempting to relitigate this exception before the Authority, which provides no basis for finding the Arbitrator's award deficient. See Bureau of Reclamation, 43 FLRA at 383. Accordingly, this exception will be denied.

V. Decision

The Agency's exceptions are denied.

APPENDIX

29 U.S.C. § 203(g) defines "employ" as:

. . . to suffer or permit to work.

29 U.S.C. § 216(b) provides, in relevant part:

Any employer who violates the provisions of section 206 or section 207 of this title 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. . . . An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. . . .

29 U.S.C. § 255 provides, in relevant part:

Any action commenced on or after May 14, 1947, to enforce any cause of action for . . . unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938 . . .

(a) [M]ay 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. . . .

29 U.S.C. § 259 provides, in relevant part:

(a) In any action or proceeding based on any act or omission on or after May 14, 1947, no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended . . . if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the agency of the United States specified in subsection (b) of this section, or any administrative practice or enforcement policy of such agency with respect to the class of employers to which he belonged. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, ruling, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.

(b) The agency referred to in subsection (a) of this section shall be--

(1) in the case of the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.]--the Administrator of the Wage and Hour Division of the Department of Labor[.]

29 U.S.C. § 260 provides, in relevant part:

In any action . . . to recover . . . unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, . . . if the employer shows to the satisfaction of the court 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 Fair Labor Standards Act of 1938, as amended, 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.

31 U.S.C. § 3702(b)(1) provides:

A claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative. The claim must be received by the Comptroller General within 6 years after the claim accrues except --

(A) as provided in this chapter or another law[.]

5 C.F.R. § 551.102(e) provides, in relevant part:

"Suffered or permitted" work means any work performed by an employee for the benefit of an agency, whether requested or not, provided the employee's supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed.

5 C.F.R. § 551.401 provides in relevant part:

(a) All time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is "hours of work."

Such time includes:

. . . .

(2) Time during which an employee is suffered or permitted to work[.]

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The relevant portions of applicable statutory and regulatory provisions are set forth in the Appendix to this decision.

2. In a supplemental submission dated January 12, 1993, the Union also cited Berg v. Newman, 982 F.2d 500 (Fed. Cir. 1992). We find no circumstances warranting our consideration of this unsolicited supplemental submission. However, we are cognizant of the case cited by the Union and, where appropriate, we address that decision in our analysis of the Agency's exceptions. See U.S. Department of Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Parker and Davis Dams and International Brotherhood of Electrical Workers, Local 640, 41 FLRA 119, 119-20 n.1 (1991).

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