Department of the Navy, Naval Air Station, Patuxent River, Maryland (Activity) and Local 1603, American Federation of Government Employees, AFL-CIO (Union)



[ v08 p148 ]
08:0148(29)MC
The decision of the Authority follows:


 8 FLRA No. 29
 
 DEPARTMENT OF THE NAVY, NAVAL AIR
 STATION, PATUXENT RIVER, MARYLAND
 (Activity)
 
 and
 
 LOCAL 1603, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 (Union)
 
                                            Case No. 0-MC-8
                                            (81 FSIP 34)
 
                   ORDER DENYING REQUEST FOR ENFORCEMENT
 
    THIS CASE IS BEFORE THE AUTHORITY FOR A RULING ON A REQUEST FILED BY
 THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE OR THE
 UNION) FOR ENFORCEMENT OF A DECISION AND ORDER OF THE FEDERAL SERVICE
 IMPASSES PANEL IN THE ABOVE-CAPTIONED CASE.
 
    IN ITS DECISION AND ORDER, DATED FEBRUARY 26, 1981, THE PANEL
 DIRECTED THE PARTIES TO ADOPT THE UNION'S PROPOSAL CONCERNING THE
 PAYMENT OF ENVIRONMENTAL DIFFERENTIAL.  SUBSEQUENTLY, THE DEPARTMENT OF
 THE NAVY FILED A REQUEST FOR RECONSIDERATION OF THE DECISION, WHICH
 REQUEST WAS DENIED BY THE PANEL ON APRIL 13, 1981.  ON MAY 12, 1981, THE
 UNION FILED THE INSTANT REQUEST FOR ENFORCEMENT, ALLEGING THAT DESPITE
 REPEATED REQUESTS BY THE UNION, MANAGEMENT HAS REFUSED TO EXECUTE AN
 UNDERSTANDING ADOPTING THE UNION'S PROPOSAL AS ORDERED BY THE PANEL.
 
    IN SUPPORT OF ITS REQUEST, THE UNION ASSERTS, IN ESSENCE, THAT
 ENFORCEMENT MAY BE SECURED BY THE AUTHORITY AT THIS STAGE OF THE
 PROCEEDINGS UPON A PETITION FILED WITH AN APPROPRIATE UNITED STATES
 COURT OF APPEALS PURSUANT TO SECTION 7123(B) OF THE FEDERAL SERVICE
 LABOR MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7123(B)), OR,
 ALTERNATIVELY, BY OTHERWISE EXERCISING REMEDIAL AUTHORITY UNDER SECTION
 7105(A) OF THE STATUTE.  THE UNION NOTES THAT ITS POSITION ON THE
 ENFORCEMENT QUESTION WAS PREVIOUSLY ARTICULATED IN A REQUEST FOR
 RECONSIDERATION OF THE AUTHORITY'S DECISION IN DEPARTMENT OF THE AIR
 FORCE, AIR FORCE LOGISTICS COMMAND AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, 4 FLRA NO. 96(1981).
 
    THE AUTHORITY HAS PREVIOUSLY HELD, IN ITS DECISION IN STATE OF NEW
 YORK, DIVISION OF MILITARY AND NAVAL AFFAIRS AND NEW YORK COUNCIL,
 ASSOCIATION OF CIVILIAN TECHNICIANS, INC., 2 FLRA NO. 20(1979), THAT
 THERE ARE NO PROVISIONS IN THE STATUTE WHICH SANCTION DIRECT APPEALS
 FROM FINAL PANEL DECISIONS TO THE AUTHORITY.  ON THE CONTRARY, THE
 AUTHORITY FURTHER HELD IN THAT REGARD THAT IT WAS THE CLEAR INTENT AND
 PURPOSE OF CONGRESS TO ESTABLISH THE UNFAIR LABOR PRACTICE PROCEDURE AS
 THE EXCLUSIVE MEANS OF OBTAINING AUTHORITY REVIEW OF DECISIONS OF THE
 PANEL.
 
    WHILE THE AUTHORITY'S DECISION IN 2 FLRA NO. 20 WAS RENDERED IN THE
 CONTEXT OF DENYING A PETITION FOR REVIEW BY THE AUTHORITY OF A PANEL
 DECISION AND ORDER, THE AUTHORITY'S REASONING AND CONCLUSION ARE EQUALLY
 APPLICABLE IN THE INSTANT CASE.  THUS, THE AUTHORITY LOOKED AT THE
 RELEVANT LANGUAGE OF THE STATUTE AND ITS LEGISLATIVE HISTORY AND FOUND:
 
    AS TO REVIEW OF FINAL PANEL DECISIONS BY THE AUTHORITY UNDER STATUTE,
 AND AS REVEALED BY
 
    RELEVANT LEGISLATIVE HISTORY OF THE STATUTE, THE CLEAR INTENT AND
 PURPOSE OF CONGRESS WAS TO
    ESTABLISH THE UNFAIR LABOR PRACTICE PROCEDURE AS THE EXCLUSIVE MEANS
 OF OBTAINING SUCH
    AUTHORITY REVIEW.  SPECIFICALLY IN THIS REGARD, IN THE PORTION OF THE
 LEGISLATIVE HISTORY OF
    THE STATUTE CONCERNING FINAL ORDERS ISSUED BY THE PANEL UNDER SECTION
 7119(C) OF THE STATUTE,
    5 U.S.C. 7119(C) (92STAT. 1209), WHICH SECTION ESSENTIALLY CODIFIES
 THE PANEL'S PREEXISTING
    AUTHORITY AND RESPONSIBILITY TO RESOLVE NEGOTIATION IMPASSES AND IS
 DERIVED FROM THE HOUSE
    BILL (H.R. 11280), THE HOUSE REPORT EXPRESSLY STATES (H. REP.  NO.
 95-1403, JULY 31, 1978, AT 54-55):
 
 
 
    NOTICE OF ANY FINAL ACTION OF THE PANEL MUST BE PROMPTLY SERVED UPON
 THE PARTIES, AND THE
    ACTION IS FINAL AND BINDING UPON THE PARTIES DURING THE TERM OF THE
 AGREEMENT, UNLESS THE
    PARTIES AGREE OTHERWISE. FINAL ACTION OF THE PANEL UNDER THIS SECTION
 IS NOT SUBJECT TO
    APPEAL, AND FAILURE TO COMPLY WITH ANY FINAL ACTION ORDERED BY THE
 PANEL CONSTITUTES AN UNFAIR
    LABOR PRACTICE BY AN AGENCY UNDER SECTION 7116(A)(6) AND (8) OR A
 LABOR ORGANIZATION UNDER SECTION 7116(B)(6) AND (8).
 
 
 
    THESE PROVISIONS OF SECTION 7116 IN THE HOUSE BILL ADVERTED TO IN THE
 REPORT, AND AS
    ENACTED WITHOUT MODIFICATION IN THE STATUTE, STATE THAT IT SHALL BE
 AN UNFAIR LABOR PRACTICE
    FOR AN AGENCY OR A LABOR ORGANIZATION, RESPECTIVELY, "(6) TO FAIL OR
 REFUSE TO COOPERATE IN
    IMPASSE PROCEDURES AND IMPASSE DECISIONS AS REQUIRED BY THIS CHAPTER;
  . . . " OR "(8) TO
    OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
 CHAPTER."
 
 
    IT IS CLEAR, THEREFORE, FROM THE LITERAL LANGUAGE OF SECTION 7116 OF
 THE STATUTE AND THE
    INTENT OF CONGRESS AS EXPRESSED IN THE RELATED LEGISLATIVE HISTORY,
 THAT UNDER THE STATUTE,
    AUTHORITY REVIEW OF A FINAL PANEL DECISION AND ORDER, SUCH AS THE ONE
 HERE INVOLVED, MAY BE
    SOUGHT BY THE PARTY OBJECTING TO THAT ORDER ONLY AFTER THE FILING OF
 UNFAIR LABOR PRACTICE
    CHARGES BY THE OTHER PARTY, BASED ON NONCOMPLIANCE WITH THE PANEL'S
 DECISION AND ORDER, UNDER
    SECTION 2423 OF THE AUTHORITY'S RULES OF PROCEDURE (44 FED.REG.  44,
 760(1979) (TO BE CODIFIED IN 5 C.F.R. PART 2423)).
 
 
    IT IS THEREFORE CLEAR THAT AS THE STATUTE DOES NOT SANCTION DIRECT
 AUTHORITY REVIEW OF PANEL DECISIONS AND ORDERS, NEITHER DOES IT SANCTION
 PETITIONS TO U.S.  COURTS OF APPEALS FOR ENFORCEMENT OF SUCH DECISIONS
 AND ORDERS.  NEVADA NATIONAL GUARD, CARSON CITY, NEVADA V. UNITED
 STATES, NO. 79-7235 (9TH CIR., DEC. 14, 1979), 78 FSIP 68(A)(1979),
 WHEREIN THE COURT GRANTED THE AUTHORITY'S MOTION TO DISMISS FOR LACK OF
 JURISDICTION (THE COURT'S ORDER WAS BASED IN PART ON ITS CONCLUSION THAT
 A DECISION AND ORDER OF THE FSIP IS NOT A FINAL ORDER OF THE AUTHORITY
 REVIEWABLE PURSUANT TO 5 U.S.C. 7123);  AND BUREAU OF PRISONS COUNCIL,
 AFGE, AFL-CIO V. FLRA, FSIP, NO. 81-1055 (D.C. CIR., JULY 2, 1981), 79
 FSIP 120(1980), WHEREIN THE COURT GRANTED THE AUTHORITY'S MOTION TO
 DISMISS THE UNION'S PETITION FOR REVIEW OF A DECISION AND ORDER OF THE
 FSIP (THE AUTHORITY HAD ARGUED IN ITS MOTION TO DISMISS THAT THE COURT
 LACKED JURISDICTION OVER THE CASE SINCE A DECISION AND ORDER OF THE FSIP
 IS NOT A FINAL ORDER OF THE AUTHORITY REVIEWABLE PURSUANT TO 5 U.S.C.
 7123).  RATHER, THE STATUTE CLEARLY DIRECTS THAT QUESTIONS OF COMPLIANCE
 ARE TO BE RESOLVED THROUGH THE UNFAIR LABOR PRACTICE PROCEDURES OF THE
 AUTHORITY.
 
    THUS, IN A SUBSEQUENT DECISION, 4 FLRA NO. 96, CITED ABOVE AS
 REFERRED TO BY THE UNION IN ITS INSTANT REQUEST, THE AUTHORITY DENIED A
 MOTION REQUESTING THAT THE AUTHORITY SEEK ENFORCEMENT OF AN AWARD OF A
 FSIP-AUTHORIZED INTEREST ARBITRATION PANEL.  IN THAT DECISION, THE
 AUTHORITY FOUND THAT EVEN ASSUMING THAT THE AWARD OF TH