13:0351(60)CA - Marshals Service and AFGE, International Council of Marshals Service Locals -- 1983 FLRAdec CA



[ v13 p351 ]
13:0351(60)CA
The decision of the Authority follows:


 13 FLRA No. 60
 
 UNITED STATES MARSHALS SERVICE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, INTERNATIONAL
 COUNCIL OF MARSHALS SERVICE LOCALS
 Charging Party
 
                                            Case No. 3-CA-2800
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Exceptions to the Judge's Decision were
 filed by the Respondent.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions, and Recommended Order.  /1A/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the United States Marshals Service shall:
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to comply with the January 11, 1980 final
 award of Arbitrator William H. Coburn issued pursuant to the Federal
 Service Labor-Management Relations Statute.
 
    (b) In any like or related manner failing or refusing to comply with
 any provision of the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Comply with the January 11, 1980 final award of Arbitrator
 William H. Coburn issued pursuant to the Federal Service
 Labor-Management Relations Statute.
 
    (b) Post at its facilities copies of the attached Notice on forms to
 be furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the Director, United States Marshals
 Service, or his designee, and shall be posted and maintained by him for
 60 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to insure that such
 Notices are not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., November 3, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT
 
 WE WILL NOT fail or refuse to comply with the January 11, 1980 final
 award of Arbitrator William H. Coburn issued pursuant to the Federal
 Service Labor-Management Relations Statute.  WE WILL NOT in any like or
 related manner fail or refuse to comply with any provision of the
 Federal Service Labor-Management Relations Statute.  WE WILL NOT in any
 like or related manner interfere with, restrain, or coerce employees in
 the exercise of any right under the Federal Service Labor-Management
 Relations Statute.  WE WILL comply with the January 11, 1980 final award
 of Arbitrator William H. Coburn issued pursuant to the Federal Service
 Labor-Management Relations Statute.
                                       (Activity)
 
 Dated:  . . .  By:  (Signature) (Title) This Notice must remain posted
 for 60 consecutive days from the date of posting, and must not be
 altered, defaced, or covered by any other material.  If employees have
 any questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director, Federal Labor
 Relations Authority, Region III, whose address is:  1111 18th Street,
 Room 700, P.O. Box 33758, Washington, D.C.  20033-0758 and whose
 telephone number is:  (202) 653-8507.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 3-CA-2800
 
    William C. Owen, Esq.
       For the Respondent
 
    Richard Robinson, Esq.
       For the Charging Party
 
    Erick Genser, Esq.
       For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 7101, et seq. (herein referred to as the Statute).
 
    Upon an unfair labor practice charge filed by the American Federation
 of Government Employees, AFL-CIO, International Council of Marshals
 Service Locals (herein referred to as the Union), on August 19, 1981
 against the United States Marshals Service (herein referred to as
 Respondent), the General Counsel of the Federal Labor Relations
 Authority (herein referred to as the Authority), by the Regional
 Director for Region 3, issued a Complaint and Notice of Hearing on
 November 23, 1981.  The Complaint alleged that Respondent violated
 section 7116(a)(1) and (8) of the Statute /1/ by failing and refusing to
 implement an arbitrator's award which had been sustained by the
 Authority.  Respondent acknowledges that it did not implement the award
 but denies that its conduct violated the Statute.
 
    A hearing on the Complaint was conducted on January 4, 1982 at which
 time all parties were represented by counsel and afforded full
 opportunity to adduce evidence, call, examine and cross-examine
 witnesses and argue orally.  The parties presented the case by
 submitting a joint stipulation of facts and other documents.  Oral
 argument was received and Respondent also filed a brief.
 
    Based upon my evaluation of the entire record in this matter I make
 the following:
 
                             Findings of Fact
 
    1.  At all times relevant hereto the Union has been the exclusive
 collective bargaining representative for various employees of Respondent
 including certain Deputy Marshals.
 
    2.  In the Fall of 1978 the Union filed a grievance under the
 parties' collective bargaining agreement relative to Respondent's
 scheduling additional tours of duties affecting a number of Deputies
 represented by the Union.  /2/
 
    3.  The matter proceeded to be heard by an arbitrator on July 31 and
 October 11, 1979.  /3/
 
    4.  Arbitrator William H. Coburn issued his Opinion and Award (the
 award) on January 11, 1980 finding, inter alia, that Respondent's
 conduct regarding the establishment of the additional tours of duty was
 a violation of the parties' collective bargaining agreement.  The award
 provided that Respondent return the Deputies to their regularly
 scheduled tour of duty and cease and desist from changing tours of duty
 in violation of the agreement.
 
    5.  On February 8, 1980 the U.S. Department of Justice, acting on
 behalf of Respondent, filed timely exceptions to the arbitrator's award
 with the Authority.
 
    6.  On April 29, 1981, the Authority issued its decision in this
 matter concluding no basis existed for finding the arbitrator's award
 deficient and, accordingly, sustained the arbitrator's award.  American
 Federation of Government Employees, AFL-CIO, International Council of
 U.S. Marshals Service Locals and The Department of Justice, U.S.
 Marshals Service, 5 FLRA No. 66 (1981).
 
    7.  By letter dated May 26, 1981 the Union requested Respondent
 implement the arbitrator's award.
 
    8.  Respondent filed in the United States Court of Appeals for the
 Ninth Circuit a petition for review of the Authority's decision in 5
 FLRA No. 66.  /4/
 
    9.  On June 24, 1981 Respondent informed the Union that it was
 declining to implement the award on the grounds that an appeal of the
 Authority's decision in 5 FLRA No. 66 had been taken to the Ninth
 Circuit.
 
    10.  Subsequent to the filing of the unfair labor practice charge in
 this matter on August 19, 1981 alleging Respondent unlawfully refused to
 implement the arbitrator's award and the issuance of the Complaint on
 November 23, 1981, Respondent, on December 23, 1981, filed a motion to
 dismiss the Complaint with the Regional Director of the Authority's
 Region 3.
 
    11.  In its motion to dismiss the Complaint Respondent contends:  (a)
 that the only means available to the Authority to enforce compliance
 with its decision in 5 FLRA No. 66 is a petition to an appropriate U.S.
 Court of Appeals pursuant to section 7123(b) of the Statute, /5/ and;
 (b) the Complaint does not, on its face, state an unfair labor practice.
 
    12.  On December 28, 1981 the Regional Director for Region 3 referred
 Respondent's motion to dismiss to the Chief Administration Law Judge and
 the matter is now before the undersigned for ruling thereon.
 
                        Discussion and Conclusions
 
    Respondent basically contends that the Authority's decision in 5 FLRA
 No. 66 sustaining the arbitrator's award is an "order of the Authority"
 within the meaning of section 7123(b) of the Statute and, in the
 circumstances herein, the Authority is "constrained" to directly seek
 enforcement by petitioning an appellate court without recourse to the
 Statute's unfair labor practice procedures.  Respondent acknowledges
 that the unfair labor practice procedures would be an appropriate
 vehicle to litigate the matter if, assuming the legality of Authority's
 decision sustaining the award, /6/ the case involved a question of
 whether its compliance was sufficient rather than, as herein, a
 situation where a total refusal to comply exists.
 
    I reject Respondent's contentions.  Neither the express language of
 Statute nor the implementing regulations suggest that the Authority is
 obliged to directly seek court enforcement of an order sustaining an
 arbitrator's award rather than proceed on an unfair labor practice
 charge to seek compliance with its order, regardless of whether a total
 or partial failure to comply exists.  Nor do any cases litigated under
 the Statute indicate that the Authority is so constrained.  While none
 of the parties to this proceeding have cited any Authority case which
 has directly treated the specific question at issue herein, the
 Authority has previously addressed requests that it seeks court
 enforcement of arbitration awards.  In one such case, Headquarters, U.S.
 Army Communications Command, et al., Fort Huachuca, Arizona and American
 Federation of Government Employees Local 1662, 2 FLRA 786 (1980), the
 union requested the enforcement of an arbitrator's award to which no
 exception to the Authority was filed.  The Authority denied the request
 because there was no "order of the Authority" to be enforced under
 section 7123(b) of the Statute.  The Authority further noted that the
 parties "were primarily disputing whether the activity has complied with
 the arbitrator's award," although it appears from the summary of facts
 set forth in the decision that the dispute actually involved whether the
 activity's conduct amounted to full or only partial compliance with the
 award.  The Authority concluded in Fort Huachuca that "ready means
 (were) available for resolving this type of dispute" and suggested that:
 
       " . . . where appropriate, the unfair labor practice procedures
       under section 7116 of the Statute may be used when there is a
       dispute concerning an alleged failure of a party to abide by a
       final and binding arbitration award.  (Footnote).  Indeed, the
       foregoing proceedings are particularly equipped to resolve
       compliance disputes such as here involved since those disputes
       frequently require credibility and other factual determinations
       dependent upon the taking of testimony in such hearings." /7/
 
    It is arguable that the exhortation in Fort Huachuca to use unfair
 labor practice procedures in cases where compliance with a final order
 of the Authority is in dispute is limited to situations where the
 alleged failure to abide by an award is a partial failure and not a
 complete refusal as in the case herein.  However, a subsequent case,
 Department of the Air Force, Air Force Logistics Command and American
 Federation of Government Employees, AFL-CIO, 4 FLRA No. 96 (1980),
 indicates that the Authority intended no such limiting implications in
 Fort Huachuca.  Air Force Logistics Command involved a situation where
 the union sought to have the Authority seek court enforcement of an
 award of an arbitration panel whose actions were authorized by the
 Federal Service Impasses Panel.  The arbitration panel issued an
 interest arbitration award and, for reasons unimportant herein, the
 agency asserted it was not a part of the proceedings and failed to abide
 by the arbitration award.  The Authority, citing Fort Huachuca, found
 that since the arbitration award of the panel had not been before the
 Authority it was not an "order of the Authority" which may be enforced
 under section 7123(b) of the Statute.  More important to the case
 herein, however, is that the Authority also noted it had stated in Fort
 Huachuca:
 
       " . . . where appropriate, the unfair labor practice procedures
       under section 7116 of the Statute may be used when there is a
       dispute concerning an alleged failure of a party to abide by a
       final and binding arbitration award . . . "
 
    Thus, although Air Force Logistics Command, as the case herein,
 involved a complete refusal to comply with an arbitration award, the
 Authority saw fit to note the availability of unfair labor practice
 procedures nonetheless.  Accordingly, I find a compelling suggestion by
 the Authority in the above cases that the General Counsel is not
 precluded in the matter herein from utilizing the unfair labor practice
 procedures of the Statute to redress Respondent's total failure to
 comply with the arbitrator's award sustained by the Authority.
 
    Respondent also contends that the Authority is precluded by section
 7116(d) of the Statute from issuing a complaint in this case.  Section
 7116(d) provides, in relevant part, that:
 
       " . . . issues which can properly be raised under an appeals
       procedure may, in the discretion of the aggrieved party, be raised
       under the grievance procedure or as an unfair labor practice under
       this section, but not under both procedures."
 
    Respondent reasons that since the underlying issue of the
 negotiability of scheduling additional tours of duty arose in the
 context of a grievance and proceeded to arbitration, recourse to unfair
 labor practice proceedings is not available thereafter.  I reject this
 contention.  At issue herein is not how to process the "underlying
 issue" to final resolution by the Authority but rather, what procedure
 is available to obtain enforcement of a final order of the Authority.
 Moreover, the Authority in Fort Huachuca and Air Force Logistics
 Command, supra, has indicated that the unfair labor practice procedures
 are indeed available in these situations, as explained above.
 
    I also reject Respondent's contention that the Authority must utilize
 the enforcement proceedings under section 7123(b) since the agency has
 timely exercised its right to appeal the Authority's decision and order
 of 5 FLRA No. 66 on the grounds that it "involves an unfair labor
 practice" within the meaning of section 7123(a)(1) of the Statute.  /8/
 While Respondent has instituted an action for judicial review claiming
 that the arbitrator's award which the Authority sustained in 5 FLRA No.
 66 involved an unfair labor practice, the Solicitor of the Authority, on
 behalf of the Authority, has taken the position before the United States
 Court of Appeals for the Ninth Circuit that the matter does not involve
 an unfair labor practice within the meaning of section 7123(a)(1) of the
 Statute and therefore, the Court lacks subject matter jurisdiction.
 Thus, the Authority, through its Solicitor, has already rejected
 Respondent's claim that the arbitration award "involves an unfair labor
 practice" and I am obligated to abide by decisions of the Authority.
 Accordingly, since the Authority, through the Solicitor, has indicated
 it rejects Respondent's position that the award "involves an unfair
 labor practice" I reject Respondent's arguments in this regard.
 
    Respondent argues next that the Complaint does not, in its face,
 state an unfair labor practice.  The Complaint alleges a failure and
 refusal to implement the arbitrator's award of January 10, 1980 and that
 such conduct violates section 7116(a)(1) and (8) of the Statute.  The
 Authority in Fort Huachuca and Air Force Logistics Command, supra,
 stated that section 7116 of the Statute may be used to resolve a dispute
 involving a failure to comply with an arbitrator's award thereby
 indicating that an allegation of a failure to comply with an
 arbitrator's award sufficiently sets forth a course of action under
 section 7116 of the Statute.
 
    Further, section 7121 of the Statute mandates that collective
 bargaining agreements provide for grievance procedures which include
 binding arbitration for unresolved grievances.  /9/ The provisions of
 section 7122 of the Statute assure that the arbitrator's award will
 culminate in a final and binding status.  /10/ Thus, the Statute
 provides rather elaborate procedures to assure a peaceful final and
 binding resolution of disputes.  To hold that one may abrogate with
 impunity the clear obligation which follow from this statutory design
 would be ludicrous indeed, especially where the Statute itself in
 Section 7116(a)(8) specifically declares failure or refusal to comply
 with any provision of the Statute to be an unfair labor practice.
 
    Accordingly, I concluded that the Complaint adequately states a cause
 of action and Respondent's failure and refusal to comply with the
 arbitration award as sustained by the Authority violated section
 7116(a)(1) and (8) of the Statute.  /11/
 
    Having found and concluded that Respondent has violated section
 7116(a)(1) and (8) of the Statute /12/ and having rejected Respondent's
 arguments with regard thereto, /13/ I recommend the Authority issue the
 following:
 
                                   ORDER
 
    Pursuant to section 2423.20 of the Federal Labor Relations
 Authority's regulations and section 7118 of the Statute, it is hereby
 ordered that the United States Marshals Service shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to implement the January 11, 1980
       award rendered by arbitrator William H. Coburn.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Implement the January 11, 1980 award rendered by arbitrator
       William H. Coburn.
 
          (b) Post at all of its facilities where employees represented
       by the American Federation of Government Employees, AFL-CIO,
       International Council of Marshals Service Locals, the employees'
       exclusive representative, are located, copies of the attached
       Notice marked "Appendix", on forms to be furnished by the Federal
       Labor Relations Authority.  Upon receipt of such forms they shall
       be signed by the Director, United States Marshals Service, and
       shall be posted and maintained by him for 60 consecutive days
       thereafter, in conspicuous places, including bulletin boards and
       all other places where notices to employees are customarily
       posted.  The Director shall take reasonable steps to insure that
       such notices are not altered, defaced, or covered by any other
       materials.
 
          (c) Pursuant to Section 2423.30 of the Federal Labor Relations
       Authority's Rules and Regulations, notify the Regional Director of
       Region 3, Federal Labor Relations Authority, 1111 18th Street,
       NW., Suite 700, Washington, D.C.  20036, in writing within 30 days
       from the date of the Order as to what steps have been taken to
       comply herewith.
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
 Dated:  June 23, 1982
 
          Washington, D.C.
 
                                 APPENDIX
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT refuse to implement the January 11, 1980 award of arbitrator
 William H. Coburn.  WE WILL NOT in any like or related manner interfere
 with, restrain, or coerce our employees in the exercise of their rights
 assured by the Federal Service Labor-Management Relations Statute.  WE
 WILL implement the January 11, 1980 award rendered by arbitrator William
 H. Coburn.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for 60
 consecutive days from the date of posting and must not be altered,
 defaced, or covered by any other material.  If employees have any
 questions concerning this Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director,
 Federal Labor Relations Authority, Region 3, 1111 18th Street, N.W.,
 Suite 700, Washington, D.C.  20036 and whose telephone number is (202)
 653-8452.
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1A/ On June 24, 1981, the Respondent filed a petition with the U.S.
 Court of Appeals for the Ninth Circuit seeking a review of the
 Authority's decision sustaining the arbitrator's award in American
 Federation of Government Employees, AFL-CIO, International Council of
 Marshals Service Locals and the Department of Justice, U.S. Marshals
 Service, 5 FLRA No. 66 (1981).  The Authority's decision involved the
 same arbitration award, the compliance with which is the subject of the
 unfair labor practice complaint herein.  Respondent's appeal of the
 Authority's decision was one basis for its defense in failing to comply
 with the arbitrator's award.  In its dismissal of the appeal for lack of
 jurisdiction, which was issued subsequent to the Judge's recommended
 decision herein, the Court adopted the Authority's position that where
 arbitration has been selected as the mechanism by which to settle a
 dispute subject to resolution through either arbitration or unfair labor
 practice procedures, and the Authority reviews exceptions to an
 arbitrator's award, the Court of Appeals has no jurisdiction to review
 the Authority's determination unless an unfair labor practice is either
 an explicit or necessary ground for the final order issued by the
 Authority.  In so finding, the Court rejected the Respondent's
 contention that the Authority's decision in 5 FLRA No. 66 involved
 unfair labor practice matters.  United States Marshals Service and the
 Department of Justice v. Federal Labor Relations Authority, 708 F.2d
 1417 (9th Cir. 1983).
 
 
    /1/ Section 7116 of the Statute provides, in relevant part:
 
          "(a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency -
 
          "(1