15:0151(27)CA - Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH and Council 214, AFGE; Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE -- 1984 FLRAdec CA



[ v15 p151 ]
15:0151(27)CA
The decision of the Authority follows:


 15 FLRA No. 27
 
 UNITED STATES AIR FORCE
 AIR FORCE LOGISTICS COMMAND
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO
 Respondent
 
 and
 
 COUNCIL 214, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-455
 
 UNITED STATES AIR FORCE
 AIR FORCE LOGISTICS COMMAND
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-842
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled consolidated proceeding, finding that the Respondent had
 engaged in certain unfair labor practices alleged in the complaints, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent filed exceptions
 to the Judge's Decision.
 
    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, as modified below.
 
    The complaint in Case No. 5-CA-842 alleged a violation of section
 7116(a)(1), (5), (6) and (8) of the Statute based upon the Respondent's
 refusal to implement an arbitration award rendered in an ex parte
 interest arbitration proceeding which had been approved by the Federal
 Service Impasses Panel as an appropriate procedure for resolving the
 parties' negotiation impasse.  The Judge found that the Respondent's
 noncompliance with the validly obtained arbitrator's award-- which he
 concluded had become final and binding in the absence of duly filed
 exceptions and was not subject to review in an unfair labor practice
 proceeding-- constituted a per se violation of section 7116(a)(1), (5),
 (6) and (8).  The Judge also concluded, with regard to the complaint in
 Case No. 5-CA-455, that the Respondent's refusal to grant official time
 and travel and per diem to three employee representatives for their
 attendance at the arbitration proceeding, pursuant to section 7131(a) of
 the Statute, constituted a violation of section 7116(a)(1) and (8) of
 the Statute.
 
    The Authority finds, in agreement with the Judge, /1/ that the
 Respondent's refusal to implement the arbitration award constituted a
 violation of section 7116(a)(1), (6) and (8) of the Statute.  As the
 Judge noted, section 7122(a) of the Statute provides that either party
 to an arbitration may file exceptions to an arbitrator's award with the
 Authority.  /2/ That Congress intended this procedure to apply to awards
 rendered in interest arbitration proceedings, such as involved in the
 instant case, was made clear by the following explanatory comments of
 the House Committee on Post Office and Civil Service contained in its
 Report accompanying H.R. 11280:  /3/
 
          Section 7122 sets forth the procedures under which a party may
       obtain review by the Authority of an arbitrator's award.  The
       procedures apply in the case of either an award in an arbitration
       resulting from an impasse proceeding under section 7119(b) . . .
       or an award in a grievance proceeding under section 7121 . . . .
 
    Congress further provided in section 7122(b) of the Statute that
 where no exceptions to an award have been filed within a prescribed time
 the award becomes final and binding and agencies are required to take
 such actions as are necessary to implement the award.  /4/
 
    Consistent with the foregoing, the Authority finds that where a party
 seeks to challenge the propriety of an arbitration award, the
 appropriate mechanism for doing so, as Congress clearly intended, is
 through the filing of exceptions to that award under the provisions of
 section 7122(a) of the Statute.  Where a party fails to avail itself of
 this procedure within the allotted time period, the award becomes final
 and binding and an agency is required to take such actions as are
 required by the award.  In such circumstances, a failure to take the
 actions required by the award constitutes noncompliance with section
 7122(b) and is therefore a violation of the Statute.  To allow a party
 which has not filed exceptions to an award to defend its failure to
 implement that award in a subsequent unfair labor practice proceeding on
 grounds that should have been raised as exceptions to the award under
 section 7122, such as in this case, would circumvent the procedures
 provided in section 7122 (a) and frustrate Congressional intent with
 respect to the finality of arbitration awards.  In this regard, as
 stated by the Committee on Conference in its Report which accompanied
 the bill ultimately enacted and signed into law:  /5/
 
          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.
 
    In the instant case, the Authority finds that the Respondent was
 required to implement the award, which the Judge found was validly
 obtained, and to which no exceptions had been filed within the period
 prescribed in section 7122(b), and which therefore became "final and
 binding" within the meaning of that provision of the Statute.  The
 Respondent's failure to do so thus constitutes a violation of section
 7116(a)(1) and (8) of the Statute.  See U.S. Army Health Clinic, Fort
 Ritchie, Maryland, 9 FLRA 935 (1982).  /6/ See also U.S. Soldiers' and
 Airmen's Home, Washington, D.C., 15 FLRA No. 26 (1984) with regard to
 when an arbitrator's award becomes "final and binding." The Authority
 further finds that, inasmuch as the interest arbitration award in this
 case resulted from the Federal Service Impasses Panel's granting the
 parties' request to resolve their negotiation dispute through the use of
 interest arbitration, the Respondent's refusal to comply with the award
 constitutes a failure to cooperate with impasse procedures and decisions
 in violation of section 7116(a)(6) of the Statute.  /7/
 
    To remedy the foregoing unfair labor practices, the Judge ordered the
 Respondent, inter alia, to implement the terms of the interest
 arbitration award retroactive to its effective date and to make the
 Union and employees whole for any monetary losses suffered as a result
 of Respondent's refusal to implement the award.  The Respondent contends
 that the Authority has no power to order such a remedy because it "would
 be compelling agreement to terms which management has not agreed which
 were established by a method that was not agreed to." In the Authority's
 view, it will effectuate the purposes and policies of the Statute to
 require the Respondent to incorporate the terms of the award in the
 parties' agreement retroactive to the date that the award became final
 and binding, subject to any agreement which may have been reached by the
 parties concerning any matter contained in the award following its
 issuance, and until modified in a manner consistent with the Statute.
 In this connection, the Authority concludes that its wide discretion to
 fashion appropriate remedies for violations of the Statute /8/
 encompasses such a remedial order.  This conclusion is further
 buttressed by the fact that the Authority is empowered by section
 7118(a)(7)(B) of the Statute to issue an order requiring that an
 agreement "be given retroactive effect" in similar circumstances, and by
 section 7118(a)(7)(D) to require "such other action as will carry out
 the purpose of this chapter." Accordingly, the Judge's recommended Order
 is adopted to this extent and shall be modified accordingly.
 
    With respect to the complaint in Case No. 5-CA-455, the Judge found
 that the refusal to grant official time and travel and per diem to the
 three employees who were stipulated by the parties as having served at
 the interest arbitration hearing as the Union's witnesses and designated
 negotiators constituted a violation of section 7116(a)(1) and (8) of the
 Statute, and that the employees should be made whole with respect
 thereto.  The Authority adopts the Judge's conclusion with respect to
 the failure to grant officials time to the designated negotiators.
 Thus, inasmuch as the interest arbitration proceeding was authorized by
 the Federal Service Impasses Panel to resolve the parties' negotiation
 impasse, the three employees serving as the Union's representatives were
 entitled to official time pursuant to section 7131(a) of the Statute.
 /9/ While section 7131(a) contains a limitation on the number of union
 representatives to be authorized official time thereunder, the Authority
 concludes that it would be inconsistent with the purposes and policies
 of the Statute if the Respondent's refusal to be represented at the
 foregoing proceeding could be used as a basis to deny a reasonable
 number of Union representatives official time to which they would
 otherwise have been entitled.
 
    However, with regard to the Judge's further finding of a violation
 based on the Respondent's refusal to grant the employees' requests for
 travel and per diem expenses, the United States Supreme Court concluded
 in Bureau of Alcohol Tobacco and Firearms v. FLRA, 104 S.Ct. 439 (1983),
 issued subsequent to the Judge's Decision herein, that the obligation of
 an agency under section 7131(a) of the Statute to provide official time
 to employees representing an exclusive representative in the negotiation
 of a collective bargaining agreement does not encompass the payment of
 travel expenses and per diem allowances.  Pursuant to that decision and
 for the reasons set forth by the Court, the Authority concludes that the
 Respondent did not fail or refuse to comply with the provisions of
 section 7131(a) of the Statute by denying travel and per diem expenses.
 Accordingly, that portion of the complaint shall be dismissed.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the United States Air Force, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to cooperate in impasse procedures and
 decisions, and to implement a final offer arbitration award rendered on
 May 20, 1980, by a panel authorized by the Federal Service Impasses
 Panel.
 
    (b) Failing and refusing to authorize and provide official time to
 employees Jack Stickradt, Jerre Harvard and Donald Cook, as a result of
 their participation under section 7131(a) of the Statute as the
 designated representatives of Council 214, American Federation of
 Government Employees, AFL-CIO, their exclusive representative, at a
 final offer arbitration proceeding.
 
    (c) In any like or related manner interfering with, restraining or
 coercing employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Incorporate the terms of the arbitration award which became final
 and binding on June 19, 1980, into the collective bargaining agreement
 between the Air Force Logistics Command and the American Federation of
 Government Employees, AFL-CIO, subject to any agreement which may have
 been reached by the parties concerning any matter contained in the award
 following its issuance, and until modified in a manner consistent with
 the Statute.
 
    (b) Provide Union representatives Jack Stickradt, Jerre Harvard and
 Donald Cook official time for the performance of their representational
 duties on February 4 and 5, 1980, and make them whole for any annual
 leave they may have utilized on those dates.
 
    (c) 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 Commander, Air Force Logistics
 Command, or his designee, and shall be posted and maintained 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.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region V, 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.
 
    IT IS FURTHER ORDERED that the portion of the complaint in Case No.
 5-CA-455 found not to have violated the Statute 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
 
 
 
 
 
 
                          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 cooperate in impasse procedure and
 decisions, and to implement a final offer arbitration award rendered on
 May 20, 1980, by a panel authorized by the Federal Service Impasse
 Panel.
 
    WE WILL NOT fail or refuse to authorize and provide official time to
 employees Jack Stickradt, Jerre Harvard and Donald Cook, as a result of
 their participation under section 7131(a) of the Statute as the
 designated representatives of Council 214, American Federation of
 Government Employees, AFL-CIO, their exclusive representative, at a
 final offer arbitration proceeding.
 
    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
 Statute.
 
    WE WILL incorporate the terms of the award which became final and
 binding on June 19, 1980, into our collective bargaining agreement with
 the American Federation of Government Employees, AFL-CIO, subject to any
 agreement which may have been reached concerning any matter contained in
 the award following its issuance, and until modified in a manner
 consistent with the Statute.
 
    WE WILL provide Union representatives Jack Stickradt, Jerre Harvard
 and Donald Cook official time for the performance of their
 representational duties on February 4 and 5, 1980, and make them whole
 for any annual leave they may have utilized on those dates.
                                       (Activity)
                                       By:  (Signature) (Title)
 
    Dated:  . . .
 
    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 for the Federal Labor Relations Authority whose address is:
 175 West Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and
 whose telephone number is (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    David W. Kerber, Esquire
    For the Respondent
 
    Janet Wachter
    For the Charging Party
 
    Gregory A. Miksa, Esquire
    For the General Counsel
 
    Before:  ALAN W. HEIFETZ
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arose pursuant to the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
 of unfair labor practice charges filed on March 21, 1980, and December
 1, 1980, with the Federal Labor Relations Authority.  Consequently, on
 December 11, 1980, the Acting Regional Director, Region V, of the
 Authority issued a complaint alleging that Respondent violated Sections
 7116(a)(1) and (8) of the Statute by failing or refusing to grant
 official time, travel and per diem for employees designated by the Union
 as negotiators and/or witnesses as a final offer arbitration hearing
 held on February 4 and 5, 1980.  Then, on January 26, 1981, the Regional
 Director, Region V, of the Authority issued a complaint alleging that
 since on or about June 19, 1980, Respondent has violated Sections
 7116(a)(1), (5), (6), and (8) of the Statute by failing to negotiate in
 good faith with the Union, failing to cooperate in impasses procedures
 and decisions, and failing to implement a final offer arbitration
 decision rendered on May 20, 1980, by a panel approved by the Federal
 Service Impasses Panel.  At the same time, these cases were consolidated
 for hearing.
 
    A hearing was held on March 19, 1981, in Dayton, Ohio.  All parties
 were afforded full opportunity to examine witnesses and to introduce
 evidence.  Post hearing briefs have been filed and considered.  /10/
 Upon the entire record, including my observation of the witnesses and
 their demeanor, I make the following findings, conclusions and
 recommendations:
 
                             Findings of Fact
 
    On January 13, 1978, the American Federation of Government Employees,
 AFL-CIO (AFGE or the Union), was certified as the exclusive
 representative of a consolidated unit of employees at the Air Force
 Logistics Command (AFLC or Respondent).  Negotiations began on the
 collective bargaining agreement in June of that year and continued
 throughout the summer.  The Federal Mediation and Conciliation Service
 (FMCS) was subsequently called to attempt to resolve certain outstanding
 matters between the parties.
 
    During the first week of October, 1978, the parties met in
 Washington, D.C. with representatives of the FMCS who suggested that,
 rather than submitting impassed matters to the Federal Service Impasses
 Panel (FSIP), they resolve their contract differences by the novel use
 of binding interest arbitration.  The parties agreed to this approach
 and they entered into a written agreement providing for a tripartite
 panel (the Panel) to arbitrate disputed remaining issues in their
 collective bargaining negotiations.  FMCS transmitted this agreement to
 FSIP for its authorization of the tripartite panel as a proper
 alternative to direct FSIP consideration of impassed issues.  On October
 12, 1978, FSIP authorized this use of outside arbitration as requested.
 
    The agreement, which was signed by the parties, witnessed by
 Commissioners of the FMCS and approved by FSIP, provides, inter alia:
 
          5.  The arbitration panel shall decide only issues which are
       negotiable.  In the event of a dispute over negotiability, the
       arbitration panel shall not presently decide such issue, but shall
       retain jurisdiction pending determination of the negotiability of
       that issue.
 
          6.  The arbitration panel shall have sole discretion to decide
       questions of procedure.
 
          8.  The decision of the arbitration panel shall be the final
       offer of one of the parties on each article, with no
       modifications.
 
          9.  The decision of the arbitration panel shall be final and
       binding on the parties, and further rights of appeal are hereby
       waived by the parties except that all articles must be in
       conformance with law and Executive Order.
 
    Thereafter, the parties selected Robert J. Ables as chairman of the
 tripartite arbitration panel, along with two other members.  On November
 2, 1978, the parties met with Mr. Ables.  During that meeting, a
 question was raised whether the term "issue", as used in the agreement,
 equated with the term "article" or whether an "article" might contain
 several "issues".  This distinction became crucial in light of the
 parties' next meeting with Mr. Ables on November 13, 1978, a meeting
 which became the focus of this proceeding.  The question raised at that
 meeting was whether, as to matters reserved as nonnegotiable but later
 found to be negotiable, there would be one or possibly two further
 hearings which would follow the initial hearing on matters which were
 immediately agreed to be negotiable.
 
    Respondent's position at that November 13, 1978 meeting was that, in
 view of paragraph 8 of the agreement which required a decision, up or
 down on an entire article, it did not want to have piecemeal hearings on
 any one article since it envisioned the possibility of choosing the
 Union's proposal on one "issue" in an article and Respondent's position
 on another "issue" within the same article.  Respondent feared that such
 a split on "issues" might result in two or more parts of an "article"
 which did not necessarily mesh.  Moreover, the AFLC knew that even if it
 reserved an issue as nonnegotiable, its determination might be overruled
 by the Department of Defense (DOD) which had the right to review that
 determination.  In addition, the Union had the right to appeal AFLC's or
 DOD's nonnegotiability determination to the Federal Labor Relations
 Council (the Authority's precursor).  This raised the possibility that
 after the Panel's initial hearing, DOD might find an "issue" negotiable
 prior to the time that the Federal Labor Relations Council (or later,
 the Authority) might rule on other "issues" contained in the same
 "article".  Again, AFLC did not want two hearings but sought, instead,
 to have one hearing only after all "issues" had had their negotiability
 finally determined.  Respondent believes that it offered, and that the
 Union accepted, a compromise which would allow the Panel to consider
 part of an article, the part that was negotiable, at one hearing and
 then, once after all the negotiability disputes were settled, there
 would be one other hearing to rule on the items which had been declared
 negotiable by DOD and the Federal Labor Relations Council.
 
    On the other hand, the Union takes the position that no agreement was
 reached at this November 13, 1978, meeting of the parties and Mr. Ables.
  As will be covered in more detail below, Mr. Ables would later find
 that no "meeting of the minds" took place at this meeting on the
 question.
 
    Two pieces of correspondence have some bearing on this November 13,
 1978, meeting.  On November 21, 1978, Respondent wrote to Mr. Ables "to
 confirm our understanding of the procedures to be followed in our
 interest arbitration as agreed upon at the conclusion of that meeting."
 Paragraph 3 of the letter stated:
 
          . . . Those issues which management declares nonnegotiable will
       not be considered by the tripartite panel during the hearings
       scheduled for 4-8 December 1978.  The remaining negotiable
       sections of those Union proposals and corresponding management
       sections will be heard by the tripartite panel, and such residual
       proposals shall be subject to a decision on an all or nothing
       basis on each article . . .
 
    Paragraph 5 contained the following:
 
          Finally, the panel will retain jurisdiction over those issues
       declared nonnegotiable by management which are subsequently found
       to be negotiable by either the Department of Defense or the
       Federal Labor Relations Council.  A hearing on those issues found
       to be negotiable will take place only after all outstanding
       negotiability issues have been finally decided by either the
       Defense Department or the Council (or its successor under Title
       VII of the Civil Service Reform Act).
 
    The Union representative wrote to Mr. Ables on November 29, 1978,
 commenting on Respondent's letter of the 21st:
 
          " . . . I do not disagree with most of the procedures outlined
       in that letter.  However, I am in disagreement with some of the
       provisions stated in paragraph 4 of that letter.
 
    Paragraph 4 of Respondent's letter did not concern the issue of
 whether there should be more than one subsequent hearing after the
 hearing scheduled to be held in December of 1978.
 
    In the meantime, the parties exchanged final offers on November 17,
 1978, and the AFLC declared certain union proposals nonnegotiable by
 letter dated November 29, 1978.
 
    Beginning on December 4, 1978, the parties appeared before the Panel
 and presented testimony and arguments concerning issues agreed by both
 parties to be negotiable as well as, and without objection by the AFLC,
 negotiable portions of articles otherwise reserved as nonnegotiable.  At
 the close of the hearings, the parties adopted Mr. Ables' suggestion
 that a scaled down negotiating team convene in his office rather than
 the Panel deciding on either the Union's or the Employer's proposals.
 As a result, all of the negotiable issues were settled by the parties
 and no decision was rendered by the Panel.
 
    On December 29, 1978, the Union requested an agency head
 negotiability determination from the Department of Defense regarding the
 proposals declared nonnegotiable by its subordinate command, the AFLC.
 Not having received a response from DOD within the time limits under
 rules of the Authority's predecessor, on April 5, 1979, the Union sought
 Authority review of the declarations of nonnegotiability.
 
    On May 2, 1979, the parties' basic collective bargaining agreement,
 which contained matters settled after the close of the Panel hearing in
 December, became effective.  On May 17, 1979, DOD filed its position
 paper with the Authority in which it upheld some, and overruled other
 AFLC declarations of nonnegotiability.
 
    Shortly after DOD reversed some of AFLC's declarations, the Union
 requested Mr. Ables to reconvene the Panel to hear those issues declared
 negotiable by DOD.  On July 18. 1979, Mr. Ables wrote to Respondent
 requesting a meeting of the parties on August 22 in order to discuss the
 matter.  Respondent wrote back on July 31 agreeing to the meeting but
 opposing the Union's request for further hearings until all issues of
 negotiability had been settled.  All parties attended the meeting on
 August 22 and thereafter furnished Mr. Ables with written statements of
 their positions as to further hearings.
 
    On October 24, 1979, Mr. Ables, with the concurrence of the Union
 Panel member on November 2, 1979, rendered his determination of the
 parties' dispute, granting the Union's request for a reopening of the
 Panel's hearings on the issues declared negotiable by DOD and scheduling
 those hearings to begin on December 3, 1979.
 
    After receiving Mr. Ables' decision, Respondent took the position
 that a material breach of the interest arbitration agreement had
 occurred and that the breach had been supported by Mr. Ables.  As a
 result, on November 14, 1979, Respondent notified the Union, Mr. Ables,
 and FSIP that it was rescinding the interest arbitration agreement and
 would leave resolution of the remaining impasses to the FSIP.
 
    On November 23, 1979, the Union wrote to FSIP asking it to reaffirm
 the Panel's authority to proceed.  Respondent forwarded its position on
 December 7, 1979.  FSIP communicated to the parties on December 18
 stating that the case was closed and that therefore it was denying the
 request to rule on the jurisdiction of the Panel and was not, itself,
 reasserting jurisdiction over the matter.
 
    In the meantime, Mr. Ables had written to the Authority requesting
 that it make an expedited decision on the negotiability appeals pending
 before it and which involved the parties.  He requested the Authority to
 rule by February 4, 1980, on all, or as many of the issues as possible
 by that date because the Panel intended to begin hearings at that time.
 The parties were sent copies of this correspondence.  Mr. Ables referred
 to this letter in his next communication to the parties on January 16,
 1980, wherein he reiterated that hearings would commence on February 4
 and that he was informed by the Authority that the parties could expect
 a decision on the negotiability appeals before that date.
 
    By letter dated January 28, 1980, Respondent notified Mr. Ables that
 it did not consider the Panel to have any further authority, that it
 would not participate in the hearing scheduled for February 4, and that
 it would not consider binding any decision which might result from the
 hearing.
 
    On January 31, 1980, the Authority issued its negotiability decision
 on all open issues in Case No. O-NG-40, Air Force Logistics Command and
 American Federation of Government Employees, 2 FLRA No. 77.
 
    On February 4 and 5, 1980, the Panel held hearings at which testimony
 was adduced and evidence received.  No representatives of Respondent
 were present.  However, Jack Stickradt, Jerre Harvard and Donald Cook,
 all employees of Respondent, were in attendance at these hearings
 serving as witnesses and designated negotiators on behalf of the Union
 during the time they otherwise would have been in duty status on the
 days the hearings were conducted.  These employees, and the Union on
 their behalf, requested of and were denied by Respondent official time,
 travel and per diem for their attendance at those hearings.  /11/
 
    On March 6, 1980, Mr. Ables sent AFLC a copy of the transcript of the
 proceedings conducted on February 4 and 5, and recommended that it file
 a post hearing brief.  The AFLC elected to return the transcript
 disclaiming that it was a party.  It filed no brief.
 
    The Panel issued its decision on May 20, 1980.  No exceptions to that
 decision were filed.  However, on June 16, 1980, the Union moved the
 Authority to enforce the Panel's award.  This motion was opposed by AFLC
 on July 24, 1980.  On December 1, 1980, the Union filed an unfair labor
 practice charge in Case No. 5CA-842.  On December 10, 1980, the
 Authority issued its decision at 4 FLRA No. 96 denying the Union's
 motion and ruling that the only appropriate forum for adjudicating an
 allegation of refusal to implement the Panel's award is through the
 unfair labor practice procedure.  The Panel's award has not been
 implemented by Respondent.
 
                        Discussion and Conclusions
 
    Timeliness of the charge in 5-CA-842
 
    As the date the alleged unfair labor practice began, the General
 Counsel selected June 19, 1980, which is 30 days after the Panel issued
 its decision in the interest arbitration.  This is within six months of
 the charge which was filed by the Union on December 1, 1980.  However,
 Respondent urges three grounds upon which it believes that the charge
 was not timely filed in accordance with Section 7118(a)(4)(A) of the
 Statute.  /12/
 
    Relying on Machinists Local Lodge 1424 v. NLRB /13/, Respondent
 argues that any finding of an unfair labor practice on June 19, 1980,
 must be predicated on a determination of the lawfulness of its
 "rescission" of the interest arbitration agreement in November of 1979,
 and that, therefore, the charge should have been filed within 6 months
 of November, 1979.  I do not believe Machinists compels that conclusion
 nor do I believe that the period of limitations began to run in November
 1979.
 
    In Machinists, the NLRB alleged that the execution of a collective
 bargaining agreement containing a union security clause was an unfair
 labor practice because the Union did not then represent a majority of
 the employees covered by the agreement.  It also alleged that the
 continued enforcement of the agreement was a separate unfair labor
 practice.  The charges were filed 10 and 12 months after the execution
 of the contract.  The employer argued that the complaints were barred by
 the limitations proviso of Section 10(b) of the National Labor Relations
 Act, as amended, /14/ which is similar to Section 7118(a)(4)(A).
 Although it was conceded that any unfair labor practice concerning the
 execution of the collective bargaining agreement was time barred, the
 Board contended that the parties' continued enforcement of the union
 security clause within the limitations period was itself a violation and
 that evidence as to the unlawful execution of the agreement was relevant
 to the assessment of conduct within the 6 month period of limitation.
 The Supreme Court agreed with the employer that since the illegality of
 continued enforcement of the contract derived from the illegality of its
 execution, which occurred outside the 6 month period of limitation, a
 charge based on continued enforcement must be filed within the same
 period, that is, 6 months from the date of execution.  The Court stated:
 
          . . . in applying rules of evidence as to the admissibility of
       past events, due regard for the purposes of Sec. 10(b) requires
       that two different kinds of situations be distinguished.  The
       first is one where occurrences within the six-month limitations
       period in and of themselves may constitute, as a substantive
       matter, unfair labor practices.  There, earlier events may be
       utilized to shed light on the true character of matters occurring
       within the limitations period;  and for that purpose Sec. 10(b)
       ordinarily does not bar such evidentiary use of anterior events.
       The second situation is where conduct occurring within the
       limitations period can be charged to be an unfair labor practice
       only through reliance on an earlier unfair labor practice.  There
       the use of the earlier unfair labor practice is not merely
       "evidentiary", since it does not simply lay bare a putative
       current unfair labor practice.  Rather, it serves to cloak with
       illegality that which was otherwise lawful.  And where a complaint
       based upon that earlier event is time-barred, to permit the event
       itself to be so used in effect results in reviving a legally
       defunct unfair labor practice.  45 LRRM at 3214-3215.
 
    Respondent argues that the instant case falls within the second
 situation cited by the Court and that the General Counsel "must rely on
 the alleged unfair labor practice in November of 1979, to infuse with
 illegality what otherwise is a legal act (i.e., refusing to comply with
 an arbitration award to which you were not party).  /15/ However, the
 two cases are not similar.  Here, Respondent's conduct in November,
 1979, is not alleged to constitute an unfair labor practice.  The only
 conduct complained of is the refusal, from and after June 19, 1980, to
 implement the decision of the Panel.  While Respondent may argue that
 the events of November, 1979, are relevant to its defense against the
 charge, /16/ evidence of such events is not prerequisite to sustaining
 the charge.  Clearly, the conduct alleged on June 19, 1980, in and of
 itself might constitute an unfair labor practice.  The case at bar falls
 within the first kind of situation cited in Machinists, not the second.
 
    Respondent next argues that the charge is untimely in that, if the
 interest arbitration award became binding at all, it did so on May 20,
 1980, since the interest arbitration agreement provides for no right of
 appeal.  However, paragraph 9 of the agreement cannot be construed as a
 complete waiver of appeal rights.  It states that the decision of the
 Panel shall be final and binding on the parties and that further rights
 of appeal are waived "except that all articles must be in conformance
 with law and Executive Order." In order to give those words any meaning,
 that paragraph must be construed to afford some sort of appeal, albeit a
 limited one.  This paragraph foreshadowed Section 7122 of the Statute in
 that it merely provided that the decision of the Panel would be final
 and binding in the absence of exceptions on certain grounds.
 
    Similarly, Section 7122(a)(1) of the Statute provides, as a standard
 of review, the inquiry whether an award is "contrary to any law, rule,
 or regulation";  and Section 7122(b) provides that if no exceptions are
 filed within 30 days, the arbitrator's award "shall be final and
 binding".  The provisions of the interest arbitration agreement are not
 inconsistent with those of the Statute.  The Panel's award was not
 binding at least until the passage of thirty days from the date of its
 issuance.
 
    I conclude that the charge in Case No. 5-CA-842 was timely filed and,
 having done so on the basis of the discussion above, I need not reach
 the question whether the period of limitations was tolled by the Union's
 motion to the Authority for enforcement of the Panel's award.
 
    Collateral attack on the Panel's jurisdiction
 
    In order to reach questions concerning rights of the parties at
 various times preceding the date of the instant charges, the question
 whether the jurisdiction of the Panel may be subject to collateral
 attack must be resolved.  I am persuaded that, on the facts of this
 case, a collateral attack may not be made.  /17/
 
    Respondent argues that the common law applies to the interest
 arbitration agreement reached in the fall of 1978 and not the body of
 federal law spawned by the Supreme Court's decision in Textile Workers
 Union v. Lincoln Mills of Ala.  /18/ Even assuming that that argument is
 tenable, the common law does not support Respondent's argument that it
 may collaterally attack the Panel's jurisdiction and, from there, argue
 that it had a right to withdraw from the interest arbitration agreement
 at any time prior to the award.  Both parties voluntarily submitted
 their disputes to the Panel.  Both participated to the extent of
 appearing at hearings in December of 1978 and thereafter reaching
 agreement on numerous contractual provisions.  No question of the
 Panel's jurisdiction arose until the summer of 1979 when the Union
 requested hearings on issues declared negotiable by DOD.  The question
 of jurisdiction was raised at the meeting of the parties before Mr.
 Ables in August of 1979 and the parties presented their views on the
 matter in writing to him.  In short, both parties had their "day in
 court" on this question.  Where the question of jurisdiction is raised
 and litigated by the parties, the judgment should be conclusive as
 between them and should preclude collateral attack.  See, Stoll v.
 Gottlieb, 305 U.S. 165 (1938).  A contractual provision that findings of
 a third party shall be final and conclusive on the parties is valid and
 enforceable unless impeached on grounds of fraud or such gross mistake
 to imply bad faith.  See, United States v. Moorman, 338 U.S. 457, 461
 (1950).  The record is devoid of such evidence.  The allegation of a
 material breach on the part of the Union /19/ is not grounds for
 allowing a collateral attack.  As the Court stated in Rochdale Village,
 Inc. v. Public Service Emp., Etc.: /20/
 
          While under principles of general contract law a material
       breach may discharge the non-breaching party of all contractual
       obligations, see, Restatement of Contracts, Sec. 397, the strong
       presumption of arbitrability in the labor relations area prevents
       a breach-created discharge of the contractual duty to arbitrate
       disputes arising "under" the contract.
 
    Finally, paragraph 6 of the agreement specifically gave the Panel
 "sole discretion to decide questions of procedure." Any question going
 to the manner in which negotiable issues were to be decided was an issue
 within the scope of the arbitration agreement and its resolution,
 therefore, was for the arbitrator.  Rochdale, supra.  Respondent's
 dissatisfaction with the resolution of that question could properly be
 remedied only by filing exceptions to the decision of the Panel.
 
    The unfair labor practice
 
    Section 7122(a) of the Statute provides that exceptions to any
 arbitrator's award may be filed by either party to the arbitration.
 Section 7122(b) provides that:
 
          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).
 
    The Statute, on its face, and the legislative history of this
 provision make it clear that there is to be no distinction made between
 grievance and interest arbitration.  The section-by-section analysis of
 the House of Representatives' version of the Statute noted:
 
          Section 7122 sets forth the procedures under which a party may
       obtain review by the Authority of an arbitrator's award.  The
       procedures apply in the case of either an award in an arbitration
       resulting from an impasse proceeding under section 7119(b), as
       added by the bill, or an award in a grievance proceeding under
       section 7121, as added by the bill.  /21/
 
    That the merits of an arbitrator's award are not subject to review in
 an unfair labor practice proceeding is the only conclusion to be drawn
 from the following language of the Conference Committee during its
 consideration of the Statute:
 
          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.  /22/
 
    The parties properly entered into binding interest arbitration under
 the auspices of the FSIP and in accordance with the then extent
 provisions of section 17 of Executive Order 11491.  /23/ This use of
 binding arbitration with approval of FSIP was carried over in Section
 7119(b) of the Statute.  /24/ As noted above, Section 7122(b) of the
 Statute provides that once an arbitrator's award becomes final, an
 agency shall take the actions required by the award.  I conclude that
 where, as here, the evidence demonstrates agency noncompliance with a
 validly obtained arbitrator's award which has become final and binding
 in the absence of duly filed exceptions, that award is not subject to
 review in an unfair labor practice proceeding and such noncompliance is,
 per se, a violation of Sections 7116(a)(1), (5), (6), and (8) of the
 Statute.  /25/
 
    Official time
 
    The parties have stipulated that the three employees, named in the
 charge, requested official time, travel and per diem in order to attend
 the hearings before the Panel which were conducted on February 4 and 5,
 1980, in Washington, D.C., and that those requests were denied by
 Respondent.  Respondent argues that it was not a party to those hearings
 and therefore it was under no obligation to grant official time to the
 employees.  In addition, Respondent argues that the Statute does not
 expressly provide for travel and per diem and that the Authority's
 interpretation in 2 FLRA No. 31, that entitlement to official time
 carries with it entitlement to travel and per diem, is in error and
 should be overruled.
 
    The pertinent statutory provision is Section 7131(a) of Title 5,
 United States Code, and provides:
 
          Any employee representing an exclusive representative in the
       negotiation of a collective bargaining agreement under this
       chapter shall be authorized official time for such purposes,
       including attendance at impasse proceeding, during the time the
       employee otherwise would be in a duty status.  The number of
       employees for whom official time is authorized under this
       subsection shall not exceed the number of individuals designated
       as representing the agency for such purposes.
 
    In view of the findings and conclusions reached earlier that the
 award of the Panel was valid and cannot be collaterally attacked, I am
 constrained to conclude that Respondent was a party to the hearings held
 on February 4 and 5, 1980, notwithstanding its decision not to attend
 them.  Its nonattendance cannot vitiate its obligation to provide
 official time in accordance with the Statute.
 
    Respondent's invitation to "overrule" the Authority's interpretation
 of the Statute in 2 FLRA No. 31 is not the first addressed to an
 Administrative Law Judge.  Not unsurprisingly, I decline to interrupt
 the unanimity with which my colleagues have turned down such entreaties.
  Unless and until such time as a decision of the Authority is overruled
 by a court of competent jurisdiction, an Administrative Law Judge is
 obliged to follow it.
 
    Respondent next argues that the Union is only entitled to so many
 representatives at the negotiation sessions or impasse proceedings as
 management has designated for such purposes and, that since management
 sent no one to the hearings on February 4 and 5, the Union is entitled
 to official time for none of its representatives.  That argument must be
 rejected as reducing the statutory provision to a nullity.  It is a
 basic rule of statutory construction that a legislative enactment must
 be construed so as to give it meaning.  To accept Respondent's argument
 would be to interpret the Statute as providing for official time only if
 management is willing to bargain.  The duty to bargain is mandatory as
 is the duty to provide official time.  The only limitation as to numbers
 assumes that in order to meet its obligation to bargain, management will
 send at least one person to the table.  Where, as here, management
 declines to attend a hearing which is capable of being conducted ex
 parte, management acts at its peril and the only practical limitation on
 the number of union representatives should be a rule of reason.  Since
 there were at least four management representatives appearing for
 Respondent at the hearings conducted in December of 1978, it was
 reasonable for the Union to expect management to bring at least as many
 as the three representatives as were brought by the Union, if management
 decided to attend the February, 1980, hearings at all.  Accordingly, I
 find Respondent's failure and refusal to grant official time, travel and
 per diem to Messrs. Stickradt, Cook and Harvard, to violate Sections
 7116(a)(1) and (8) of the Statute.
 
    The remedy
 
    The Union and the General Counsel seek a status quo ante remedy.
 Respondent argues against such a remedy on grounds (1) that it did not
 have adequate notice of the issues to be heard at the February 4 and 5
 hearings;  (2) that imposition of the Panel's award would not effectuate
 the purposes of the Statute;  (3) that the Union cannot receive a remedy
 as a result of actions it took after the contract was repudiated;  and
 (4) that the Authority may not properly order implementation of
 contractual terms which Respondent had no part in developing.
 
    Resort to arbitration as the preferred means for resolving
 labor-management disputes received its highest judicial imprimatur from
 the United States Supreme Court in the Steelworkers Trilogy.  /26/ That
 Court decreed that the scope of review of an arbitrator's award should
 be extremely narrow, that doubt as to whether an agreement to arbitrate
 covers a particular subject should be resolved in favor of coverage, and
 that an award should not be set aside for reasons of contractual
 interpretation where that question has been resolved by the arbitrator.
 As noted above, the parties entered into binding arbitration consistent
 with the provisions of the Executive Order then in effect;  that by
 terms of paragraph 6 of the agreement, procedural questions were to be
 decided at the sole discretion of the Panel;  and, that under the
 Statute, the procedure for review of an interest arbitration award is no
 different from that for grievance arbitration.  Since questions of
 procedural due process were properly before the arbitrator, from whose
 decision no exceptions were taken, they are not properly raised now to
 argue against specific performance as a remedy.
 
    After the decisions by the Supreme Court in the Steelworkers Trilogy,
 the question whether an arbitrator's award is enforceable was answered
 in the affirmative by the Fourth Circuit in Winston-Salem Printing
 Pressman and Assistant Union v. Piedmont Publishing Co.  /27/ Interest
 arbitration has been recognized both under the Executive Order and the
 Statute, and its enforceability is a necessary concomitant to continued
 reliance on it as a means for expeditious settlement of labor disputes.
 Arbitration arising under public sector labor law does not warrant an
 approach different from that taken in the private sector.  The Federal
 Labor Relations Council recognized that parallel considerations obtain,
 /28/ and they continue today.  To hold that an arbitrator's award is not
 enforceable (or here, not to grant a status quo ante remedy) is to
 encourage parties to walk away from an agreed upon process whenever they
 might become dissatisfied with its substance or procedure.
 
    Respondent's argument that the Union should have gone to the FSIP to
 mitigate its damages instead of proceeding to the arbitration hearing
 must be rejected.  The arbitration hearing was conducted with the
 approval of FSIP and in lieu of direct FSIP involvement.  Repudiation of
 the interest arbitration agreement by Respondent was a calculated risk
 taken at its peril.  Having waived its right to file exceptions to the
 award, Respondent cannot now equitably argue that it should not suffer
 the consequences of its election.
 
    Finally, Respondent argues that the Authority lacks the power to
 order a status quo ante remedy, citing H. K. Porter v. NLRB.  /29/
 Although the Court in that case held that the obligation to bargain in
 good faith did not give the NLRB the right to compel concessions or
 judge the substantive terms of a collective bargaining agreement, that
 is not the case where a party seeks implementation of the award of an
 arbitrator.  In that instance, both parties have agreed on the method by
 which their disputes are to be resolved and the only issue is whether
 they are to reap the benefit of their bargain.  No "concession" is
 involved, only specific enforcement of an agreement already freely
 entered into by the parties.
 
    Giving due consideration to all of the facts and arguments raised in
 these cases, I can find no justification to withhold a status quo ante
 remedy.  Furthermore, I conclude that such a remedy is appropriate
 because it is the only meaningful and effective way to remedy the
 violation and the record fails to establish that such a remedy would
 create a serious disruption of Respondent's operations.  /30/ Having
 found and concluded that Respondent has violated 5 U.S.C. 7116(a)(1),
 (5), (6) and (8), I recommend that the Federal Labor Relations Authority
 issue the following order pursuant to 5 C.F.R. 2423.29(c):
 
                                   ORDER
 
    ORDERED, that the United States Air Force, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to authorize and provide official
       time, travel and per diem to employees Jack Stickradt, Jerre
       Harvard and Donald Cook, pursuant to the provisions of 5 U.S.C.
       7131(a), while they are engaged in representing Council 214,
       American Federation of Government Employees, AFL-CIO, their
       exclusive representative, at final offer arbitration hearings.
 
          (b) Failing and refusing to negotiate in good faith with the
       American Federation of Government Employees, AFL-CIO;  to
       cooperate in impasses procedures and decisions;  and to implement
       a final offer arbitration decision rendered on May 20, 1980, by a
       panel approved by the Federal Service Impasses Panel.
 
          (c) In any like or related manner, interfering with,
       restraining or coercing employees in the exercise of 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) Provide Union representatives Jack Stickradt, Jerre Harvard
       and Donald Cook official time for the performance of their
       representational duties on February 4 and 5, 1980, and make them
       whole for the annual leave they utilized on those dates and, upon
       submission of an appropriate voucher, pay to them whatever travel
       and per diem expenses an employee engaged in official Agency
       business would be entitled.
 
          (b) Implement the May 20, 1980, award of the Panel, effective
       retroactively to June 20, 1980, and make whole the Union and
       employees for any pecuniary or other losses suffered as a result
       of Respondent's refusal to implement that award on June 20, 1980.
 
          (c) Post at its facilities 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
       Commander, Air Force Logistics Command, and shall be posted and
       maintained for 60 consecutive days thereafter in conspicuous
       places, including all bulletin boards and other places where
       notices are customarily posted.  Reasonable steps shall be taken
       to ensure that the notices are not altered, defaced or covered by
       any other material.
 
          (d) Notify the Federal Labor Relations Authority in writing
       within 30 days from the date of this Order as to what steps have
       been taken to comply with the Order.
                                       ALAN W. HEIFETZ
                                       Administrative Law Judge
 
    Dated:  June 22, 1981
 
    Washington, D.C.
 
                                 APPENDIX
 
                          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 THE
 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 authorize and provide official time,
 travel and per diem to employees Jack Stickradt, Jerre Harvard and
 Donald Cook while they are engaged in representing Council 214, American
 Federation of Government Employees, AFL-CIO, their exclusive
 representative, at final offer arbitration hearings.
 
    WE WILL NOT fail or refuse to negotiate in good faith with the
 American Federal of Government Employees, AFL-CIO:  to cooperate in
 impasses procedures and decisions;  or to implement a final offer
 arbitration decision rendered on May 20, 1980, by a panel approved by
 the Federal Service Impasses Panel.
 
    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
 Statute.
 
    WE WILL provide Union representatives Jack Stickradt, Jerre Harvard
 and Donald Cook official time for the performance of their
 representational duties on February 4 and 5, 1980, and make them whole
 for the annual leave they utilized on those dates and pay to them
 whatever travel and per diem expenses an employee engaged in official
 Agency business would be entitled.
 
    WE WILL implement the May 20, 1980, award of the arbitration panel
 approved by the Federal Service Impasses Panel, effective retroactively
 to June 20, 1980, and make whole the Union and employees for any
 pecuniary or other losses suffered as a result of our not implementing
 that award on June 20, 1980.
                                       (Agency or Activity)
                                       By:  (Signature)
 
    Dated:  . . .
 
    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 of the Federal Labor Relations Authority, Region V,
 Suite A-1359, 175 West Jackson Boulevard, Chicago, Illinois 60604.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In reaching his conclusion, the Judge found, and the Authority
 agrees, that the charge in Case No. 5-CA-842 had been timely filed based
 upon the date the arbitration award became final and binding under
 section 7122(b) of the Statute.  In this regard, see U.S. Soldiers' and
 Airmen's Home, Washington, D.C., 15 FLRA No. 26 (1984).  The Authority
 also adopts the Judge's conclusion that there is no basis for a
 collateral attack in the instant proceeding on the jurisdiction of the
 arbitration panel.
 
 
    /2/ Section 7122(a) of the Statute provides in pertinent part as
 follows:
 
          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(.)
 
 
    /3/ H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 56 (1978), reprinted
 in Legislative History of the Federal Service Labor-Management Relations
 Statute, Title VII of the Civil Service Reform Act of 1978, at 702
 (1979).  Section 7122 of the Statute, as finally enacted and signed into
 law, in all material respects is essentially as reported out of the
 House Post Office and Civil Service Committee and there is no indication
 in the legislative history that the stated intent of the House Post
 Office and Civil Service Committee with respect to section 7122 of H.R.
 11280 was not also the consensus of the Congress.
 
 
    /4/ Section 7122 (b), as amended by the Civil Service Miscellaneous
 Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 4, 98 Stat. 47, 48
 (1984), provides as follows:
 
          (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
       backpay (as provided in section 5596 of this title).
 
 
    /5/ H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 158 (1978), reprinted
 in Legislative History, supra n. 3, at 826.
 
 
    /6/ In view of this conclusion, the Authority finds it unnecessary to
 pass upon the Judge's further finding that the Respondent also thereby
 violated section 7116(a)(5) of the Statute.
 
 
    /7/ The Authority notes the decision in Ables v. United States, 2
 Cl.Ct. 494 (1983), aff'd, No. 83-1218 (Fed. Cir. Jan. 17, 1984), in
 which the chairman of the arbitration panel involved herein sought
 payment for services rendered in connection with the ex parte
 arbitration proceeding.  While it may be unclear whether and under what
 circumstances an arbitrator may collect payment for such services, such
 an issue is separate and distinct from questions concerning the
 obligation to implement awards rendered in ex parte proceedings, with
 which the Authority is here concerned.
 
 
    /8/ Section 7105(g)(3) of the Statute provides:
 
          (g) In order to carry out its functions under this chapter, the
       Authority may--
 
                                .  .  .  .
 
          (3) require an agency or a labor organization to cease and
       desist from violations of this chapter and require it to take any
       remedial action it considers appropriate to carry out the policies
       of this chapter.
 
    See also section 7118(a)(7) of the Statute.
 
 
    /9/ Section 7131(a) provides:
 
          Sec. 7131.  Official time
 
          (a) Any employee representing an exclusive representative in
       the negotiation of a collective bargaining agreement under this
       chapter shall be authorized official time for such purposes,
       including attendance at impasse proceeding, during the time the
       employee otherwise would be in a duty status.  The number of
       employees for whom official time is authorized under this
       subsection shall not exceed the number of individuals designated
       as representing the agency for such purposes.
 
 
    /10/ Counsel for the General Counsel's unopposed Motion to Correct
 Transcript is granted.
 
 
    /11/ The parties stipulated these facts as well as the fact that
 Council 214, American Federation of Government Employees, AFL-CIO, since
 November 20, 1979, has been and is not an agent of the American
 Federation of Government Employees at the activity and facilities of
 Respondent.
 
 
    /12/ That section provides:
 
          Except as provided in subparagraph (B) of this paragraph, no
       compliant shall be issued based on any alleged unfair labor
       practice which occurred more than 6 months before the filing of
       the charge with the Authority.
 
 
    /13/ 362 U.S. 411, 45 LRRM 3212 (1960).
 
 
    /14/ 29 U.S.C. 160(b) which, in pertinent part provides:
 
          . . . no complaint shall issue based upon any unfair labor
       practice occurring more than six months prior to the filing of the
       charge with the Board . . .
 
 
    /15/ Respondent's brief at p. 20.
 
 
    /16/ Cf., NLRB v. McCready & Sons, Inc., 83 LRRM 2674, 2676 (1973).
 
 
    /17/ Notwithstanding this conclusion, I adhere to my original ruling
 which allowed into the record evidence which is relevant to a collateral
 attack.  I am not persuaded that a collateral attack on an arbitrator's
 decision would never lie.  Query, would it be an unfair labor practice
 not to implement an arbitrator's award obtained by fraud, deceit or
 other chicanery?  What if shortly after the period for filing exceptions
 lapsed, a party discovered that the arbitrator had been unlawfully
 influenced by the other party?  Is it incumbent upon the discovering
 party to take affirmative action in some forum or may that party sit
 back until the malefactor seeks to take some action in the nature of
 enforcing the suborned award?  A certain amount of evidence must be
 received in order to determine whether facts exist which might form the
 basis of a successful collateral attack.
 
 
    /18/ 353 U.S. 448, 40 LRRM 2113 (1957).
 
 
    /19/ It is doubtful that a material breach could be found merely from
 the Union's request that the Panel reconvene.
 
 
    /20/ 605 F.2d 1290, 1297 (2nd Cir. 1979).
 
 
    /21/ Legislative History of the Federal Service Labor-Management
 Relations Statute, Title VII of the Civil Service Reform Act of 1978,
 Committee Print No. 96-7, Committee on Post Office and Civil Service,
 House of Representatives, 96th Cong., 1st Sess., Nov. 19, 1979, p. 702.
 
 
    /22/ Id. at 826.
 
 
    /23/ That section provides, in pertinent part:
 
          Negotiation impasses.  When voluntary arrangements, including
       the services of the Federal Mediation and Conciliation Service . .
       . fail to resolve a negotiation impasse, either party may request
       the Federal Service Impasses Panel to consider the matter.  The
       Panel . . . may recommend procedures to the parties for the
       resolution of the impasse . . . Arbitration . . . may be used by
       the parties only when authorized or directed by the Panel.
 
 
    /24/ Where voluntary arrangements fail to resolve a negotiation
 impasse subsection (2) provides:
 
          the parties may agree to adopt a procedure for binding
       arbitration of the negotiation impasse, but only if the procedure
       is approved by the (Federal Service Impasse) Panel.
 
 
    /25/ It is an unfair labor practice under Section 7116(a) for an
 agency:
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise of any right under this chapter;
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
          (6) to fail or refuse to cooperate in impasse procedures and
       impasse decisions as required by this chapter;
 
                                  * * * *
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /26/ United Steelworkers v. American Mfg. Co., 363 U.S. 564, 46 LRRM
 2414 (1960);  United Steelworkers v. Warrior and Gulf Navigation Co.,
 363 U.S. 574, 46 LRRM 2416 (1960);  United Steelworkers v. Enterprise
 Wheel and Car Corp., 363 U.S. 593, 46 LRRM 2423 (1960).
 
 
    /27/ 393 F.2d 221 (1968).  The Court expressly rejected the opposite
 view taken in Boston Printing Pressman's Union v. Potter Press, 241 F.2d
 787 (1st Cir. 1957), a case decided prior to the Steelworkers Trilogy.
 Public sector recognition of binding interest arbitration renders Potter
 Press inapposite regardless of the extent to which it still may have
 some