15:0686(137)CA - DOD, Navy, Marine Corps, Marine Corps Air Station, Cherry Point, NC and IAM District 110 -- 1984 FLRAdec CA



[ v15 p686 ]
15:0686(137)CA
The decision of the Authority follows:


 15 FLRA No. 137
 
 DEPARTMENT OF DEFENSE
 DEPARTMENT OF THE NAVY
 UNITED STATES MARINE CORPS
 UNITED STATES MARINE CORPS AIR STATION
 CHERRY POINT, NORTH CAROLINA
 Respondent
 
 and
 
 INTERNATIONAL ASSOCIATION OF
 MACHINISTS & AEROSPACE WORKERS,
 AFL-CIO, DISTRICT 110
 Charging Party
 
                                            Case No. 4-CA-502
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his 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.  Thereafter, the Respondent filed exceptions
 to the Judge's Decision.
 
    Pursuant to section 2413.29 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 Judge found that the Respondent's noncompliance with the
 arbitrator's award to which no exceptions were filed constituted a
 violation of section 7116(a)(1), (5) and (8) of the Statute.  In so
 finding, he concluded, however, that a party may not be required to
 perform an unlawful act in order to comply with an arbitrator's award.
 Upon reviewing the merits of the Respondent's claim, the Judge concluded
 that compliance with the arbitrator's award would not require an
 unlawful act.
 
    While agreeing with the Judge's conclusion that Respondent's failure
 to comply with the Arbitrator's award was violative of the Statute, the
 Authority specifically rejects the Judge's determination that, even
 though no timely exceptions to the arbitrator's award had been filed
 with the Authority, he was nevertheless required to consider the merits
 of Respondent's assertion as an affirmative defense to the unfair labor
 practice allegation that compliance with the arbitrator's award would
 compel the performance of an unlawful act.  As noted by the Authority in
 United States Air Force, Air Force Logistics Command, Wright-Patterson
 Air Force Base, Ohio, 15 FLRA No. 27 (1984), "(t)o 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 . . . would
 circumvent the procedures provided in section 7122(a) and frustrate
 Congressional intent with respect to the finality of arbitration
 awards." Given the Congressionally mandated exclusivity of section
 7122(a) /1/ as a mechanism for questioning arbitrators' awards, it would
 be inappropriate for the Authority to entertain in subsequent unfair
 labor practice proceedings matters which more appropriately should be
 pursued in accordance with section 7122(a) of the Statute.  In the
 Authority's view, any contention that an arbitrator's award is deficient
 because it is contrary to any law, rule, or regulation must be made by
 invoking the procedures established by Congress in section 7122(a) of
 the Statute.  If a party fails to file exceptions to an arbitrator's
 award pursuant to section 7122(a) within the 30 day period established
 therein, the award, pursuant to section 7122(b) of the Statute, becomes
 "final and binding" and "(a)n agency shall take the actions required by
 an arbitrator's award." /2/ In view of the language of the Statute and
 relevant legislative history concerning the finality of arbitration
 awards pursuant to section 7122(b) of the Statute, as more fully
 discussed in Wright-Patterson, supra, the Authority is constrained to
 conclude that any failure to comply with a validly obtained arbitrator's
 award to which no exceptions have been timely filed constitutes a
 failure to comply with the requirements of section 7122 of the Statute
 in violation of section 7116(a)(1) and (8) of the Statute.  Any other
 conclusion would render section 7122(b) meaningless, as a party could
 fail to file exceptions to an arbitrator's award pursuant to section
 7122(a), take no action, and then present its argument in the course of
 defending against the unfair labor practice allegation.  To permit such
 a protracted procedure would be inconsistent with the policy that the
 arbitration process provides both an expeditious and a final resolution
 of grievances.  Therefore, the Authority concludes that the Respondent
 herein violated section 7116(a)(1) and (8) of the Statute by virtue of
 its failure to comply with the arbitrator's award.  /3/
 
                                   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 Department of Defense, Department of the Navy,
 United States Marine Corps Air Station, Cherry Point, North Carolina,
 shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to fully implement Arbitrator T. Warren
 Butler's arbitration award rendered on October 11, 1979 and Arbitrator
 Butler's clarification of his award rendered on May 6, 1980.
 
    (b) 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 November 10, 1979 and the clarification which became
 final and binding on June 5, 1980 into the collective bargaining
 agreement between United States Marine Corps Air Station, Cherry Point,
 North Carolina and the International Association of Machinists and
 Aerospace Workers, AFL-CIO, District 110, 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) 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, United States Marine
 Corps Air Station, Cherry Point, North Carolina, 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IV, 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., August 28, 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 and refuse to fully implement Arbitrator T. Warren
 Butler's arbitration award rendered on October 11, 1979 and Arbitrator
 Butler's clarification of his award rendered on May 6, 1980.
 
    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 arbitration award which became
 final and binding on November 10, 1979 and the clarification which
 became final and binding on June 5, 1980 into the collective bargaining
 agreement between United States Marine Corps Air Station, Cherry Point,
 North Carolina and the International Association of Machinists and
 Aerospace Workers, AFL-CIO, District 110, 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.
                                       (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 its provisions, they may communicate directly with the Regional
 Director, Federal Labor Relations Authority, Region IV, whose address
 is:  1776 Peachtree Street, NW, Suite 501, North Wing, Atlanta, Georgia,
 30309 and whose telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Delores T. Griffin
    For Respondent
 
    Terry A. Wethington
    For Charging Party
 
    Mathilde L. Genovese
    For General Counsel of FLRA
 
    Before:  SAMUEL A. CHAITOVITZ
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding arising under the Federal Service
 Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et
 seq., (hereinafter called the Statute).
 
    On July 7, 1980 a charge was filed by International Association of
 Machinists & Aerospace Workers, AFL-CIO, (IAM) District 110 (hereinafter
 called IAM District 110, the Union and/or Charging Party) against
 Department of Defense, Department of the Navy, United States Marine
 Corps, United States Marine Corps Air Station, Cherry Point, North
 Carolina (hereinafter called Marine Corps Air Station and/or Respondent)
 alleging that Respondent violated the Statute with respect to its
 failure to comply with an arbitrator's award.  The charge was amended on
 July 15, 1980 and again on April 12, 1981.
 
    On April 22, 1981 the General Counsel of the Federal Labor Relations
 Authority (FLRA), by the Director of Region 4 issued a Complaint and
 Notice of Hearing alleging that Respondent had violated Section
 7116(a)(1), (5) and (8) of the Statute by refusing to implement an
 arbitration award.  Respondent filed an answer denying the allegations
 of the complaint.
 
    A hearing in this matter was conducted before the undersigned in
 Cherry Point, North Carolina.  The General Counsel of the FLRA,
 Respondent and IAM District 110 were represented and afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence and to argue orally.  Post hearing briefs were filed
 and have been fully considered.  /4/
 
    Based upon the entire record in this matter and my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
 
                           Findings of Fact /5/
 
    At all times material herein Respondent has IAM Lodge No. 2296 /6/
 has been the exclusive collective bargaining representative for a unit
 composed of all of Respondent's ungraded employees, including
 warehousemen.
 
    In early 1978, Respondent initiated a rewarehousing program in its
 Supply Department, for the purpose of refurbishing warehouse bins and
 reassigning of stock.  Respondent established a special team for the
 rewarehousing work which initially consisted of maintenancemen, WG-8 and
 WG-9.  The maintenancemen were assigned from Lee White's section;  White
 was the Rewarehouseing/Storage Support Branch Supervisor.  During 1978,
 various warehousemen, WG 3, 4, and 5 were assigned to the rewarehousing
 team;  the warehouseman worked side by side with the maintenancemen.
 One of the warehousemen so assigned was temporarily promoted on two
 occasions to a WG 8 maintenanceman position.  After several of the
 warehousemen became proficient in the rewarehousing work, /7/ White
 removed his maintenancemen from the project;  the warehousemen became
 responsible for the completion of the rewarehousing project.  After
 several complaints by warehousemen regarding the requirement that they
 perform the rewarehousing work that had previously been performed by the
 maintenancemen, Ira J. Jones, Material Group Director, on or about
 November 15, 1978, rewrote the job descriptions of the warehousemen
 (WG-5) incorporating the duties previously performed by the
 maintenancemen.
 
    On or about December 1, 1978, Donald B. Miller, a Classification
 Specialist, at the request of Vernon Stewart, the Principal Classifier,
 audited the rewritten job description.  Miller found that the job
 description was properly classified as a Warehouseman, WG-5.
 
    Benjamin Gaskill, at that time one of the warehousemen assigned to
 the rewarehousing team, filed a written grievance, pursuant to the
 collective bargaining agreement, alleging that warehousemen were
 performing the higher graded work of maintenancemen without additional
 pay or a change in job title.  Gaskill first presented his grievance to
 Classifier Stewart on November 1, 1978 and after receiving an
 unsatisfactory reply on December 11, 1978, Gaskill reduced the grievance
 to writing.  The parties were unable to resolve the grievance and
 proceeded to arbitration.  The parties presented their positions to
 Arbitrator T. Warren Butler on June 27, 1979.  Jones and Miller
 testified at the Arbitration hearing on behalf of Respondent.
 
    Butler issued an Arbitration Award on October 11, 1979.  The Award
 summarized the positions of the parties as follows:
 
          The union contends that the employer violated the agreement in
       several sections. . . .  The thrust of the union contention is
       that the employer effectively required higher level work from
       warehousemen than usual warehousemen work and thereby got higher
       level work accomplished without providing higher pay and better
       benefits.
 
          The employer contends that its change in the job description of
       warehousemen was within "management rights" and that employees who
       deemed themselves abused by a change in the job description have
       appeal rights to determine if the job description is proper.
 
          The employer also contends that the disassembling and
       assembling of racks are consistent with general "warehouseman"
       work and such duties do not qualify an employee to be rated as
       "maintenance mechanic."
 
    The arbitrator found that the warehousemen, WG 4, 5, and 6 who were
 assigned to the rewarehousing team, worked side by side with maintenance
 mechanics performing identical work.  The arbitrator reviewed the
 testimony of three warehousemen assigned to the team.  These
 warehousemen testified at the Arbitration Proceeding that, historically,
 the duties of warehousemen were the receiving, storing and issuing of
 material.  The warehousemen stated that construction of bins, which
 required the use of wrenches, electric drills, crowbars, pallet jacks,
 mallet hammers, forklifts, tapes, chalk lines, straightening of bent and
 twisted metal, crimping metal and working from blueprints, had always
 been mechanic work and not warehouseman work.  The arbitrator
 specifically concluded that the duties the warehousemen were required to
 perform were neither traditional nor historical duties of warehousemen
 and that the rewarehousing work was traditionally performed by
 maintenance mechanics.  The arbitrator therefore found that Respondent
 violated Article XVI, Section 7, /8/ and Article XVIII, Sections 1 and 6
 /9/ of the contract.
 
    The arbitrator rejected Respondent's argument that it was a
 management right to unilaterally change the warehousemen's job
 descriptions and further rejected Respondent's contention that
 warehousemen, who felt that they were adversely affected by the change
 in their job descriptions had to exercise their appeal rights, by noting
 that the contract provided an avenue of redress through the grievance
 procedure and arbitration.  The arbitrator addressed Respondent's
 management rights argument and concluded that management was required to
 discuss a proposed modification of a job description with the affected
 employees and the Union.  The arbitrator held that Respondent did not
 meet this requirement.  In this regard, the arbitrator stated,
 "Hopefully, such a discussion would lead to an amicable resolution of
 the problem.  Short of this, the Union is left to the other contract
 provisions quoted herein in order to be sure that management follows the
 requirements of assigning work to properly rated employees and paying
 employees on the basis of the highest level of duties assigned." The
 arbitrator issued the following award:
 
          The grievance is sustained in part and denied in part.
       Management violated the agreement in failing to discuss with the
       union the proposed change in the job description for warehousemen.
        Warehousemen may not be required to do the rewarehousing work at
       warehouseman pay unless the job description is changed properly,
       i.e., after a good faith discussion with the union.  The evidence
       is not sufficient to decide, if, or to what extent, the company
       violated the assignment portions of the agreement or the
       compensation portions of the agreement.  No backpay is awarded.
       The company is required to record the "mechanical type" experience
       of the appropriate warehousemen in their personnel files.
 
    Although the arbitrator awarded no backpay, he specifically stated in
 his decision that greater skills call for higher pay, but from the
 evidence presented, he could not determine to what extent the pay
 provisions of the contract were violated.  Therefore, the arbitrator had
 insufficient evidence on which to base such an award.
 
    Following receipt of the award, Terry A. Wethington, Business
 Representative for IAM District 110, was notified by warehouseman Terry
 Realini, who was assigned to the rewarehousing team, that warehousemen
 were still being assigned to the higher level duties that the arbitrator
 found to be maintenanceman duties.  On or about November 15, 1979,
 Wethington wrote a letter to Respondent advising that the 30 day time
 period to appeal the Arbitrator's Award had expired.  Wethington also
 wrote that the continued assignment of the warehousemen to the higher
 level duties without compensating them and Respondent's failure to
 comply with the Arbitrator's Award was a serious matter.  Wethington
 suggested that the employees be retroactively, temporarily promoted to
 Maintenance Worker, WG-8, until the issue was settled as directed by the
 Arbitrator.  When Wethington had not received a reply to this letter by
 the end of November, 1979, he filed an unfair labor practice charge.
 Thereafter, on or about December 7, 1979, Respondent replied by letter
 to the Union's November 15, 1979 letter and advised that it was ready to
 meet to discuss the proposed changes in the warehousemen job description
 and that such a discussion would fulfill the arbitration award.
 Respondent took the position that any temporary promotions would be
 inappropriate "since no determination has been made that the employee's
 duties should be classified at a higher level.  There is no provision in
 the award for this nor would it be proper until a determination is made
 as to the proper classification of the job.  If there is a disagreement
 as to the classification of the job, the employees may appeal such
 classification through the appropriate appeals procedure." The Union
 immediately replied to Respondent's letter and adhered to their stated
 position that the Arbitrator's Award barred Respondent from requiring
 the warehousemen to do rewarehousing work at warehousemen pay until the
 job description was properly changed.  The Union advised Respondent that
 the assignment of the warehousemen to the higher level duties, without
 higher level pay, violated the contract.
 
    From December, 1979 through March, 1980, Respondent did not discuss
 with the Union what level of pay the warehousemen assigned to the
 rewarehouseman team should receive because Respondent insisted that the
 warehousemen were not performing higher level duties and were not
 entitled to any higher pay.
 
    In order to settle the unfair labor practice charge filed by the
 Union in November, 1979, the parties agreed, on or about March 12, 1980,
 to request from the arbitrator a clarification of his October 11, 1979
 award.  Respondent and the Union each submitted their interpretation of
 the award to the arbitrator.  Respondent contended that there was
 nothing in the award that required the promotion of the warehousemen,
 even on a temporary basis, and that before the warehousemen could
 legally be paid at a higher rate of pay, the warehousemen position must
 first be classified at a higher level.  Respondent took the position
 that they were required only to discuss the proposed job description of
 the warehousemen with the Union.  Respondent noted in its position
 letter that the Union was not satisfied with discussion and that Union
 felt the jobs deserved more pay, but that the Union "continued to avoid
 the procedure for making the determination.  The classification question
 . . . which cannot be a matter for the grievance procedure, must be
 answered before the employees could justifiably be paid at a higher rate
 of pay.  It does not appear to the employer that the arbitrator intended
 the award to dictate that the employees be paid at the higher rate of
 pay." The Union advised the arbitrator that the parties discussed and
 agreed to a job description which had to be graded by Respondent's Wage
 and Classification Section to determine the proper hourly wage.  The
 Union noted that the Arbitration Award had issued on October 11, 1979,
 that the warehousemen continued to be assigned to work found by the
 arbitrator to be in violation of several articles of the contract, and
 that no one knew how long it would take to obtain a final decision
 regarding the pay grade of the warehousemen position.  The Union
 requested that the arbitrator clarify whether, due to the long delay in
 implementing the award, the warehousemen performing maintenance duties
 were entitled to retroactive pay from the date of the award, if any was
 found to be merited by the classification process.
 
    On or about May 6, 1980, the arbitrator issued a clarification of his
 award.  Butler declared that he had disagreed with Respondent's
 position, that the rewarehousing work was properly assigned to
 warehousemen.  He found that the implementation of the award revolved
 around Articles XVI and XVIII of the contract, and concluded that the
 warehousemen were entitled to the higher pay of maintenance mechanics:
 
          The award made it quite clear that the employer violated those
       portions of Article XVI and Article XVIII when the employer
       required warehousemen to do the rewarehousing work which involved
       mechanic skills over an extended period of time.  Therefore the
       warehousemen were entitled to maintenance mechanic pay during
       those periods of time the warehousemen were performing
       rewarehousing work except for those periods of time specified in
       the agreement.  Article XVI, Section 7 allows for a thirty day
       assignment of an employee above the level of their rating, but
       further requires a temporary promotion to the higher level
       position where it can reasonably be determined in advance that an
       employee in the unit will be required to perform a majority of
       their duties above the level of their rating for periods in excess
       of thirty days.  The arbitrator found that the rewarehousing work
       was anticipated to last five years and, by implication, found that
       the warehousemen should have been temporarily promoted if a
       majority of their duties were to be the rewarehousing work.  The
       award further provided that the employer violated Section 6 of
       Article XVIII because the employer did not assign the
       rewarehousing work within the proper rating.  This same section
       requires the employer to compensate employees on the basis of the
       highest level of duties assigned as a substantial portion of the
       job assignment.  Therefore, the warehousemen who were assigned the
       rewarehousing work as a substantial portion of their job
       assignment should have been compensated as mechanics.
 
    The clarification specifically addressed, in detail, the issue of
 backpay.  The Arbitrator stated that the only reason mechanic pay was
 not awarded was because there was insufficient evidence to determine
 which employees were performing the higher graded work, for what periods
 of time they were engaged in the higher graded work, and what amount of
 mechanic pay each individual warehousemen deserved.  "Although the
 arbitrator felt that the employer violated the assignment portions of
 the agreement and that some backpay was justified, the arbitrator is
 limited by and bound by the evidence presented at the hearing."
 
    The Arbitrator again rejected Respondent's position that the affected
 warehousemen had appeal rights, under Article XVIII, Section 2 /10/ of
 the contract and that until these were rights exercised by the
 warehousemen, no higher level pay could be authorized.  The arbitrator
 stated that Respondent had misassigned the warehousemen and that the
 warehousemen were entitled to backpay because they were performing work
 normally assigned to maintenance mechanics.
 
          The employer acts at its peril when it misassigns its
       employees.  Therefore, any warehouseman who is required to do
       rewarehousing work after the date of this original award as
       defined by and limited by the provisions in Section 6 of Article
       XVIII, is entitled to mechanic pay until such time as the
       warehousemen job description includes all of the duties required
       of warehousemen in whatever jobs to which they are assigned.
       Until a new job description meeting this definition is properly
       implemented according to all the terms of the agreement including
       appeal and grading, the warehousemen are being misassigned and are
       entitled to compensation "on the basis of the highest level of
       duties assigned as a substantial portion of the job assignment."
       During the pendency of the procedures for changing the job
       description, the parties are bound by the contract provisions
       discussed herein.  If the employer does not wish to pay mechanic
       wages to the warehousemen, it is incumbent upon the employer to
       have all mechanic duties performed by employees who are graded
       mechanics.
 
    The arbitrator recommended that the Union keep detailed records to
 document which employees were misassigned and to what extent a
 substantial portion of the warehousemen's work was above the level of
 their assignment if Respondent continued to assign warehousemen to
 mechanic duties.
 
    Following receipt of the clarification, the Union discussed the award
 with Willis R. Stevens, Supervisory Labor Relations Specialist.  /11/
 Stevens told the Union that the clarification imposed no obligation for
 retroactive pay or any higher level of pay.  Stevens advised the IAM
 District 110 that Wage and Classification determined that the highest
 level that Respondent could legally or by regulation pay the
 warehousemen was WG-5.
 
    On or about June 24, 1980 representatives of IAM District 110 met
 with Respondent to again discuss the clarification.  Wethington
 expressed the Union's position that the warehousemen were still
 performing higher graded work and that the arbitrator rules that they
 should be retroactively paid at a higher level.  Stevens stated that
 neither the arbitrator's award nor the clarification required Respondent
 to pay the warehousemen at a higher rate of pay.
 
    In July, 1980, Wethington met with Respondent's representatives
 Jones, White, Gaskill and Commander Treecy to discuss a proposed job
 description for Maintenance Worker, WG-8.  Wethington understood from
 Jones /12/ that this job description, which described the duties that
 the rewarehousing team was performing, would be submitted to Wage and
 Classification for grading.
 
    At no time have any of the warehousemen assigned to the rewarehousing
 team received backpay for performing the higher graded work.  The Union
 began compiling records reflecting which warehousemen on the
 rewarehousing team performed the higher level duties and for what period
 of time they performed said duties.  The Union began collecting this
 data following receipt of the arbitrator's award in October 1979.
 
    Respondent did not appeal the arbitrator's award or clarified award
 to the Authority pursuant to Section 7122(b).
 
                        Discussion and Conclusions
 
    This case presents the question whether Respondent violated Sections
 7116(a)(1), (5) and (8) of the Statute by failing to comply with the
 arbitrator's award.  In United States Air Force, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, OALJ 81-123 (1981),
 (hereinafter referred to as the Wright-Patterson Case) Judge Heifetz
 discussed the reviewability of an arbitrator's award.  In agreement with
 Judge Heifetz and for the reasons he set forth in the Wright-Patterson
 Case, supra, I conclude that, the exclusive method for obtaining review
 of an arbitrator's award is pursuant to Section 7122(b) of the Statute
 and review cannot be obtained through an unfair labor practice
 proceeding.  Accordingly, because Respondent failed to utilize Section
 7122(b) of the Statute, the arbitrator's award is not reviewable in this
 proceeding and I conclude that, absent a finding that compliance with
 arbitrator's award would be unlawful, failure to comply with such award
 constitutes a violation of Section 7116(a)(1), (5) and (8) of the
 Statute.
 
    Arbitrator Butler in his original award and in the clarification made
 it quite clear that Respondent had not complied with the collective
 bargaining agreement with respect to the assignment of warehousemen to
 the rewarehousing work.  Accordingly Arbitrator Butler stated "any
 warehouseman . . . required to do rewarehousing work after the date of
 this original award . . . is entitled to mechanic pay until such time as
 the warehousemen job description includes all the duties required of
 warehousemen . . . " Arbitrator Butler stated further, "until a new job
 description meeting this definition is properly implemented according to
 all the terms of the agreement . . . the warehousemen are being
 misassigned and are entitled to compensation 'on the basis of the
 highest level of duties assigned as a substantial portion of the job
 assignment'."
 
    Arbitrator Butler's decision, as clarified, is clear and unambiguous
 and, I conclude that Respondent's failure to pay the warehouseman
 mechanic's rates for the period the warehousemen performed rewarehouse
 work from the date of the Arbitrator's original decision, until such
 time as the warehousemen job description is changed, in accordance with
 the provisions of the collective bargaining agreement, to include the
 rewarehousing work, constitutes a failure to comply with arbitrator's
 award and clarification.
 
    The FLRA held in U.S. Department of Labor, 5 FLRA No. 11 (1981) that
 whether an employee should be compensated, pursuant to an agreement, at
 a higher rate for the temporary period he performed work at a higher
 grade is arbitrable and that such an award would not be unlawful.  See
 also Veterans Administration Hospital, 4 FLRA No. 7 (1980).
 Accordingly, it is concluded that Arbitrator Butler's award and
 clarification is lawful and that Respondent's failure to comply with his
 award and clarification constituted a violation of Sections 7116(a)(1),
 (5) and (8) of the Statute.  See the Wright-Patterson Case, supra.
 
    Having found and concluded that Respondent violated Section
 7116(a)(1), (5) and (8) of the Statute, I recommend that the Authority
 issue the following:
 
                                   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 Department of Defense, Department of the Navy,
 United States Marine Corps Air Station, Cherry Point, North Carolina
 shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to comply with the arbitration award
       of Arbitrator T. Warren Butler, issued on October 11, 1979 and
       Arbitrator Butler's clarification issued on May 6, 1980 by failing
       and refusing to pay warehousemen for the time they performed
       rewarehousing work at the Mechanics WG-8 rate, in accordance with
       Section 6 of Article XVIII of the collective bargaining agreement,
       during the period from October 11, 1979 until such time as the
       warehouseman job description is revised in accordance with the
       terms of the collective bargaining agreement between International
       Association of Machinists and Aerospace Workers, AFL-CIO, Lodge
       2296 and Marine Corps Air Station, Cherry Point, North Carolina,
       to include the rewarehousing work.
 
          (b) In any like to 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) Comply with the arbitration award of Arbitrator T. Warren
       Butler issued on October 11, 1979 and Arbitrator Butler's
       clarification issued on May 6, 1980 by paying warehousemen at the
       Mechanic WG-8 rate, in accordance with Section 6 of Article XVIII
       of the collective bargaining agreement, for the time they
       performed rewarehousing work during the period from October 11,
       1979 until such time as the warehousemen job description is
       revised, in accordance with the terms of the collective bargaining
       agreement between International Association of Machinists and
       Aerospace Workers, AFL-CIO, Lodge 2296 and Marine Corps Air
       Station, Cherry Point, North Carolina, to include the
       rewarehousing work.
 
          (b) 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 an
       authorized representative 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 insure that the
       notices are not altered, defaced or covered by other material.
 
          (c) 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.
 
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  April 14, 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 fail and refuse to comply with the arbitration award of
 Arbitrator T. Warren Butler issued on October 11, 1979 and Arbitrator
 Butler's clarification issued on May 6, 1980 by failing and refusing to
 pay warehousemen for the time they performed rewarehousing work at the
 Mechanics WG-8 rate, in accordance with Section 6 of Article XVIII of
 the collective bargaining agreement, during the period from October 11,
 1979 until such time as the warehouseman job description is revised in
 accordance with the terms of the collective bargaining agreement between
 International Association of Machinists and Aerospace Workers, AFL-CIO,
 Lodge 2296 and Marine Corps Air Station, Cherry Point, North Carolina,
 to include the rewarehousing work.
 
    WE WILL NOT in any like or related manner, interfere with restrain or
 coerce employees in the exercise of rights assured by the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL comply with the arbitration award of Arbitrator T. Warren
 Butler issued on October 11, 1979 and Arbitrator Butler's clarification
 issued on May 6, 1980 by paying warehousemen at the Mechanic WG-8 rate,
 in accordance with Section 6 of Article XVIII of the collective
 bargaining agreement, for the time they performed rewarehousing work
 during the period from October 11, 1979 until such time as the
 warehousemen job description is revised, in accordance with the terms of
 the collective bargaining agreement between International Association of
 Machinists and Aerospace Workers, AFL-CIO, Lodge 2296 and Marine Corps
 Air Station, Cherry Point, North Carolina, to include the rewarehousing
 work.
                                       (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, Federal Labor Relations Authority, Region Four, whose
 address is 1776 Peachtree Street, NW, Suite 501 - North Wing, Atlanta,
 Georgia 30309 and whose telephone number is (404) 881-2324.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 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(.)
 
 
    /2/ Section 7122(b) 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 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).
 
 
    /3/ In view of this conclusion, the Authority finds it unnecessary to
 pass upon the Judge's further finding that the Respondent also violated
 section 7116(a)(5) of the Statute.
 
 
    /4/ Respondent also filed a Reply Brief which has been considered.
 
 
    /5/ The facts were set forth accurately in the Brief of the General
 Counsel of the FLRA.
 
 
    /6/ IAM Lodge No. 2296 is affiliated with IAM District 110.
 
 
    /7/ The rewarehousing work consisted of tearing down existing bins
 and constructing new bins which were tailor made for the items to be
 stored.
 
 
    /8/ Article XVI, Section 7 provides:
 
          It is agreed that employees assigned duties above the level of
       their rating for periods in excess of thirty (30) calendar days or
       where it can reasonably be determined in advance that an employee
       in the unit will be required to perform a majority of their duties
       above the level of their rating for periods in excess of thirty
       (30) calendar days, such employees, if qualified, shall be
       temporarily promoted to the higher level position.  Only qualified
       employees will be assigned in such cases.
 
 
    /9/ Article XVIII, Sections 1 and 6 provide:
 
          Section 1.
 
          . . . In any case where action is proposed to modify the job
       description of any position in the unit to the extent that either
       the rati