15:0139(26)CA - Soldiers' and Airmen's Home, Washington, DC and AFGE Local 3090 -- 1984 FLRAdec CA



[ v15 p139 ]
15:0139(26)CA
The decision of the Authority follows:


 15 FLRA No. 26
 
 U.S. SOLDIERS' AND AIRMEN'S HOME
 WASHINGTON, D.C.
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3090, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-20561
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practice alleged in the complaint, and recommending
 that the complaint be dismissed.  Thereafter, both the General Counsel
 and the Charging Party filed exceptions to the Judge's Decision, and the
 Respondent filed separate oppositions thereto.
 
    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 recommendation that the complaint be
 dismissed.
 
    The complaint alleged that the Respondent's failure and refusal to
 comply with an arbitrator's award constituted noncompliance with the
 provisions of section 7122(b) of the Statute in violation of section
 7116(a)(1) and (8) of the Statute.  /1/ As stipulated by the parties,
 the Respondent filed timely exceptions to the arbitrator's award with
 the Authority.  /2/ Those exceptions were still pending for resolution
 by the Authority, when the unfair labor practices charges involved
 herein were filed.  The Judge therefore concluded that the Respondent
 had not failed or refused to comply with the provisions of section
 7122(b) of the Statute.  In this regard, the Judge found that section
 7122(b) requires only that an agency shall take the action required by a
 "final" award, and provides that an arbitrator's award becomes final and
 binding if no timely exceptions to the award are filed with the
 Authority pursuant to section 7122(a) of the Statute.  Thus, since the
 Respondent herein had filed timely exceptions to the arbitrator's award
 with the Authority, the Judge concluded that the Respondent was not
 required to implement the award pending the Authority's resolution of
 those exceptions.  The Authority agrees.
 
    Section 7122 of the Statute, as amended by the Civil Service
 Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 4, 98
 Stat. 47, 48 (1984), provides:
 
          Sec. 7122.  Exceptions to arbitral awards
 
          (a) Either party to arbitration under this chapter may file
       with the Authority an exception to any arbitrator's award pursuant
       to the arbitration (other than an award relating to a matter
       described in section 7121(f) of this title).  If upon review the
       Authority finds the award is deficient--
 
          (1) because it is contrary to any law, rule, or regulation;  or
 
          (2) on other grounds similar to those applied by federal courts
       in private sector labor-management relations;  the Authority may
       take such action and make such recommendations concerning the
       award as it considers necessary, consistent with applicable laws,
       rules, or regulations.
 
          (b) If no exception to an arbitrator's award is filed under
       subsection (a) of this section during the 30 day period beginning
       on the date the award is served on the party, the award shall be
       final and binding.  An agency shall take the actions required by
       an arbitrator's final award.  The award may include the payment of
       back pay (as provided in section 5596 of this title).
 
    The language of section 7122(b) makes it clear that an agency must
 take the actions required by an arbitrator's award once that award has
 become final, and defines a final and binding arbitrator's award as one
 to which no exceptions are filed during the prescribed time following
 the service date of such award.  Accordingly, where no timely exceptions
 to an arbitrator's award have been filed under section 7122(a) of the
 Statute, an agency's subsequent failure or refusal to implement the
 award has been found to constitute a violation of section 7116(a)(1) and
 (8) of the Statute.  See U.S. Army Health Clinic, Fort Ritchie,
 Maryland, 9 FLRA No. 133 (1982).  Similarly, once an agency's timely
 filed exceptions to an arbitrator's award have been denied by the
 Authority, the agency must implement such award, and therefore a
 subsequent failure or refusal to do so also constitutes a violation of
 section 7116(a)(1) and (8) of the Statute.  See United States Marshals
 Service, 13 FLRA No. 60 (1983), appeal docketed, No. 83-7973 (9th Cir.
 Dec. 30, 1983).  Such conclusion is consistent with the intent of
 Congress with respect to the finality of arbitrators' awards, as
 expressed by the Committee on Conference in its Report which accompanied
 the bill ultimately enacted and signed into law:  /3/
 
          The House provides that if no exception to an arbitrator's
       award is filed with the Authority, the award "shall be final and
       binding" (section 7122(b)).  The Senate contained no comparable
       provision.  The conferees adopted the House provision.  The intent
       of the House in adopting this provision was to make it clear that
       the awards of arbitrators, when they become final, are not subject
       to further review by any other authority or administrative body,
       including the Comptroller General.
 
    Conversely, where exceptions to an arbitrator's award have been filed
 under section 7122(a) of the Statute within the time limits specified in
 section 7122(b), such award, by definition, has not become "final and
 binding." Since an agency is only required by section 7122(b) to "take
 the actions required by an arbitrator's final award", a failure to
 comply with the award until the pending exceptions have been resolved by
 the Authority cannot constitute noncompliance with that section and
 therefore is not a violation of section 7116(a)(1) and (8) of the
 Statute.  As noted by the Judge, a contrary conclusion could result in
 the Authority's reaching the conflicting conclusions that an agency has
 committed an unfair labor practice by refusing to comply with an
 arbitrator's award and the issuance of an affirmative order requiring
 compliance, on the one hand, and, on the other hand, that exceptions to
 the same award are meritorious and that the award must be set aside
 under section 7122(a).
 
    Inasmuch as the Respondent herein filed timely exceptions to binding"
 within the meaning of section 7122(b) of the Statute until the Authority
 issued its decision resolving the exceptions, /4/ the Respondent was not
 required during the period of time encompassed by the complaint herein
 to take the action required in the award and, therefore, did not violate
 section 7116(a)(1) and (8) of the Statute as alleged.  Accordingly, the
 complaint shall be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-20561 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., June 26, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Major Glen H. Schlabs, Esquire
    For the Respondent
 
    Eileen Hamamura Miller, Esquire
    For the General Counsel
 
    Donald M. MacIntyre, Esquire
    For the Charging Party
 
    Before:  LOUIS SCALZO
    Administrative Law Judge
 
                                 DECISION
 
    This case arose as an unfair labor practice proceeding under
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called "the Statute"),
 and the Rules and Regulations issued thereunder.  It was transferred to
 the Office of Administrative Law Judges for decision on a stipulated
 record.
 
    The complaint, dated July 29, 1982, alleges that from on or about
 March 25, 1982, the Respondent failed and refused to comply with the
 provisions of 5 U.S.C. 7122(b) of the Statute by failing and refusing to
 comply with an arbitrator's award;  and further that by reason of the
 foregoing the Respondent committed unfair labor practices in violation
 of Sections 7116(a)(1) and (8) of the Statute.
 
    The Respondent denies violating the provisions of Section 7122(b) of
 the Statute on the ground that the award in question was not final and
 binding within the meaning of Section 7122(b).
 
    Based upon the entire record herein, including the stipulation of
 facts, stipulated exhibits, and briefs filed by the parties, I make the
 following findings of fact, conclusions and recommendation.
 
                             Findings of Fact
 
    On or about September 24, 1981, and November 6, 1981, the Respondent
 and the Charging Party participated as parties in an arbitration
 proceeding presided over by Arbitrator Nicholas H. Zumas.  The
 arbitration case, entitled "In the Matter of Arbitration Between U.S.
 Soldiers' and Airmen's Home, and American Federation of Government
 Employees, Local 3090, FMCS Case No. 81-K-18940, Grievant:  Josie
 Simpkins," resulted in the issuance of a March 25, 1982 award in favor
 of the Grievant.  The Grievant, a nursing assistant, had been charged
 with misconduct associated generally with alleged acts of patient abuse.
  The award resolved certain credibility issues in favor of the Grievant.
  It provided that she be reinstated within ten days of the award with
 seniority unimpaired, and with back pay less deduction for outside
 earnings.
 
    On April 22, 1982, the Respondent filed timely exceptions to the
 award in accordance with Section 7122(b) of the Statute, but did not,
 and has not, requested a stay of the award.  The Respondent has not
 complied with the award, and as of this date the Authority has not ruled
 on exceptions filed.
 
                        Discussion and Conclusions
 
    Section 7116(a)(8) of the Statute makes it an unfair labor practice
 for an agency "to otherwise fail or refuse to comply with any provision
 of this chapter." Counsel for the General Counsel contends that the
 Respondent's failure to comply with the March 25, 1982 arbitration award
 was violative of Section 7122(b) of the Statute, and that as a result
 Respondent violated Sections 7116(a)(1) and (8).
 
    Section 7122 provides the following with respect to arbitral awards:
 
          Sec. 7122.  Exceptions to arbitral awards.
 
          (a) Either party to arbitration under this chapter may file
       with the Authority an exception to any arbitrator's award pursuant
       to the arbitration (other than an award relating to a matter
       described in section 7121(f) of this title).  If upon review the
       Authority finds that the award is deficient--
 
          (1) because it is contrary to any law, rule, or regulation;  or
 
          (2) on other grounds similar to those applied by Federal courts
       in private sector labor-management relations;  the Authority may
       take such action and make such recommendations concerning the
       award as it considers necessary, consistent with applicable laws,
       rules, or regulations.  /5/
 
          (b) If no exception to an arbitrator's award is filed under
       subsection (a) of this section during the 30-day period beginning
       on the date of such award, the award shall be final and binding.
       An agency shall take the actions required by an arbitrator's final
       award.  The award may include the payment of backpay (as provided
       in section 5596 of this title).
 
    Section 2429.8 of the Regulations (5 C.F.R. 2429.8) provides:
 
          Sec. 2429.8 Stay of Arbitration Award;  requests.
 
          (a) A request for a stay shall be entertained only in
       conjunction with and as a part of an exception to an arbitrator's
       award filed under Part 2425 of this subchapter.  The filing of an
       exception shall not itself operate as a stay of the award involved
       in the proceedings.
 
          (b) A timely request for a stay of an arbitrator's award to
       which an exception has been filed shall operate as a temporary
       stay of the award.  Such temporary stay shall be deemed effective
       from the date of the award and shall remain in effect until the
       Authority issues decision and order on the exception, or the
       Authority or its designee otherwise acts with respect to the
       request for the stay.
 
          (c) A request for a stay of an arbitrator's award will be
       granted only where it appears, based upon the facts and
       circumstances presented, that:
 
          (1) There is a strong likelihood of success on the merits of
       the appeal;  and
 
          (2) A careful balancing of all the equities, including the
       public interest, warrants issuance of a stay.
 
    On November 20, 1981, the Authority proposed a revision of Section
 2429.8 to provide that the timely filing of an exception to an
 arbitration award would automatically stay such award until the
 Authority resolved the exception.  46 Fed.Reg. 57056 (1981).  The
 revised Section 2429.8 would have contained the following language:
 
          Sec. 2429.8 Stay of Arbitration Award.
 
          The filing of an exception to an arbitrator's award under Part
       2425 of this subchapter shall operate as a stay of the award.
       Such stay shall be deemed effective from the date of the award and
       shall remain in effect until the Authority resolves the exception.
 
    The explanation accompanying the proposed revision noted:
 
          Under Sec. 2429.8 of the Authority's final rules and
       regulations, the Authority will entertain a request for a stay of
       an arbitration award only in conjunction with and as part of an
       exception to an arbitrator's award filed under part 2425 of the
       rules and regulations.  The proposed revision would more
       accurately reflect the provisions and intent of section 7122(b) of
       the Federal Service Labor-Management Relations Statute (5 U.S.C.
       7122(b)) . That section provides that if an exception to an award
       is not filed with the Authority during the 30 day period beginning
       on the date of the award, then the award becomes final and binding
       and whatever action is required by the final award must be taken.
       Therefore, the Statute implicitly provides for a stay of the award
       when exceptions have been timely filed with the Authority and the
       proposed revision reflects that provision.  Likewise, the change
       facilitates the administration of the Statute, since it would
       avoid questions concerning compliance with an award which may be
       subsequently set aside or modified as a result of the exceptions
       filed.
 
    On August 25, 1982, the Authority withdrew the proposed revision, and
 provided the following explanation:
 
          The Authority has carefully considered all of the comments
       received on the proposed revision from agencies, labor
       organizations, and law firms.  Based on those comments and further
       consideration of the matter, the Authority has determined that the
       provisions of the Federal Service Labor-Management Relations
       Statute, including those specifically related to arbitration, are
       best served by retaining Sec. 2429.8 of the Authority's rules and
       regulations as currently in effect.  The proposed revision
       therefore is withdrawn.  47 Fed.Reg. 38133 (1982).
 
    It is noted that the Authority did not, in its withdrawal of the
 proposed revision, repudiate the interpretation of Section 7122(b)
 reflected in the November 20, 1981 comment accompanying the proposed
 revision.
 
    This case necessarily turns upon the threshold question of whether or
 not the conduct of the Respondent was violative of Section 7122(b) of
 the Statute.  Only on this basis may the provisions of Section
 7116(a)(1) and (8) be invoked.  /6/ Section 7122(b) does not
 specifically or otherwise accord a final and binding effect to
 arbitrator's awards during the period when the Authority is resolving
 exceptions timely filed under the provisions of Section 7122(b), and the
 terminology utilized in Section 7122(b) does not address the issue of
 whether there is a duty to comply with an arbitrator's award while a
 case is pending before the Authority after the timely filing of
 exceptions.  Further, the terms of Section 7122(b) do not specifically
 address the question of deference to be accorded to arbitration awards
 during the period when timely filed exceptions are being resolved.
 
    In order for a violation of Section 7116(a)(8) to exist it must be
 shown that the Respondent failed or refused to comply with a provision
 of the Statute.  As noted the Statute does not specifically impose an
 obligation of the type alleged in the complaint.  This interpretation
 was recognized by the Authority in its November 20, 1981 issuance
 relating to the proposed revision of Section 2429.8 of the Regulations.
 
    It is true that Section 2429.8 does appear to accord a binding effect
 to such awards pending resolution of exceptions in cases wherein a stay
 has not been granted;  however, it is clear from the terms of Section
 2429.8, that a failure to obtain a stay pending resolution of exceptions
 does not automatically confer finality to an arbitration award.
 
    This case is unlike U.S. Army Health Clinic, Ft. Ritchie, Maryland, 9
 FLRA No. 133 (August 16, 1982).  In the cited case the award had a final
 and binding effect within the meaning of Section 7122(b) because timely
 exceptions were not filed by the U.S. Army Health Clinic.  Thus,
 violations of Section 7116(a)(1) and (8) were appropriately based upon a
 failure to comply with Section 7122(b).
 
    Similarly, this case is unlike a refusal to give effect to a decision
 of the Federal Service Impasses Panel.  Such conduct is made an unfair
 labor practice by Section 7116(a)(6).  In such cases the duty to comply
 is mandated by the Statute.  Thus, even assuming that Section 2429.8 of
 the Regulations accords a final and binding effect to an arbitration
 award in cases wherein timely exceptions are filed and a stay is not
 obtained, the contravention of the terms of Section 2429.8, a regulatory
 provision, may not, without a corresponding failure to comply with the
 Statute, rise to the level of an unfair labor practice.  /7/
 
    The underlying theory of the complaint in this case necessarily
 suggests that an agency may be found guilty of an unfair labor practice
 for refusal to obey an arbitrator's award pending resolution of
 exceptions, even though the resolution of such exceptions might, under
 the provisions of Section 7122(a), result in the setting aside or
 modification of the award by the Authority.  It is conceivable that
 under such a theory an agency charged with a failure to comply with an
 arbitrator's award might be found guilty of an unfair labor practice for
 failure to comply, and also be absolved from any responsibility to
 comply with the award because of a favorable determination in the
 separate appeal of the arbitration award.  Since the issue of compliance
 would be pending before the Authority, and the Office of Administrative
 Law Judges, inconsistent dispositions might easily result.
 
    Problems posed in this area of concern were recognized by the
 Authority in the November 20, 1981 statement relating to the proposed
 revision of Section 2429.8 of the Regulations.  Also, the Authority must
 have been considering the possibility of such incongruous results during
 the formulation of its decision in Headquarters, U.S. Army
 Communications Command, et al., Fort Huachuca, Arizona, 2 FLRA 785
 (1980).  In Fort Huachuca the Authority noted the following with respect
 to cases involving issues concerning compliance with arbitration awards:
 
          There are ready means under the Statute for resolving this type
       of dispute . . . .  (W)here 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.  /8/
 
    This policy position has been reaffirmed by the Authority.  General
 Statement of Policy or Guidance, 3 FLRA 623 (1980);  Department of the
 Air Force, Air Force Logistics Command, 4 FLRA No. 96 (1980);  Council
 of District Office Locals, American Federation of Government Employees,
 San Francisco Region, AFL-CIO, 5 FLRA No. 100 (January 15, 1982, Order
 Denying Petition for Enforcement).  See also United States Marshals
 Service, Case No. 3-CA-2800, OALJ 82-78 (Decision of Administrative Law
 Judge Salvatore J. Arrigo, June 23, 1982).
 
    These authorities reflect that only a failure or refusal to comply
 with a final and binding arbitration award may be made the basis of an
 unfair labor practice charge and complaint.
 
    Upon the basis of the foregoing, it is recommended that the Authority
 issue the following Order pursuant to 5 C.F.R. 2423.29(c).
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-20561, be,
 and it hereby is, dismissed.
 
                                       LOUIS SCALZO
                                       Administrative Law Judge
  
    Dated:  November 24, 1982
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (8) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /2/ However, the Respondent did not request a stay of the award under
 section 2429.8 of the Authority's Rules and Regulations.
 
 
    /3/ H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 158 (1978), reprinted
 in Legislative History of the Federal Service Labor-Management Relations
 Statute, Title VII of the Civil Service Reform Act of 1978, at 826
 (1979).
 
 
    /4/ The exceptions filed by the Agency were denied by the Authority
 on March 18, 1983 in U.S. Soldiers' and Airmen's Home, 11 FLRA No. 117
 (1983).
 
 
    /5/ After final