16:0840(118)CA - Justice, INS, Washington, DC and AFGE Local 1589 -- 1984 FLRAdec CA
[ v16 p840 ]
The decision of the Authority follows:
16 FLRA No. 118 DEPARTMENT OF JUSTICE U.S. IMMIGRATION AND NATURALIZATION SERVICE WASHINGTON, D.C. Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1589, AFL-CIO Charging Party Case No. 9-CA-30065 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record in this case, including the parties' stipulation of facts, accompanying exhibits, and the parties' contentions, the Authority finds: The complaint alleges that the Respondent, the U.S. Immigration and Naturalization Service, violated section 7116(a)(1), (5) and (8) of the Statute by failing to fully comply with an arbitration award rendered on October 22, 1982 by Arbitrator Timothy D. W. Williams, pursuant to a grievance filed under the terms of the negotiated grievance procedure between the Respondent and the American Federation of Government Employees (National Immigration and Naturalization Service Council) (AFGE). /1/ Arbitrator Williams' award dealt with the seven day suspension of an employee of the Portland, Oregon District resulting from three separate management allegations of misconduct. The arbitrator ruled that a three day suspension for one of the infractions was consistent with the parties' agreement but that both of the two day suspensions were not consistent with such agreement. He ordered that the employee be reimbursed for four paid workdays. The employee's seven day suspension ran from a Sunday through the following Saturday inclusive, which the Respondent contends is consistent with Office of Personnel Management requirements for suspensions of less than 14 days. Thus, the employee missed only five paid workdays. The Respondent reimbursed the employee for only two missed paid workdays, thereby leaving the employee with three missed paid workdays which it viewed as being consistent with the arbitrator's finding. The General Counsel and the Charging Party contend that the arbitrator's award clearly requires the Respondent to provide the employee with four days backpay and that the arbitrator's specific requirement for four days backpay is consistent with the facts presented to him at the arbitration hearing. The Respondent sought clarification of the award from the arbitrator. The arbitrator refused this request for two basic reasons-- the clarification was not jointly sought by the parties involved as the Charging Party did not participate in the request, and because the award is clear on its face and consistent with the facts presented before him at the hearing. Exceptions to the arbitrator's award were never filed pursuant to the provisions of section 7122(a) of the Statute. /2/ In Department of Defense, Department of the Navy, United States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137 (1984), the Authority concluded that "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." Where exceptions are not filed thereto, the award becomes "final and binding." The Authority concluded 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." Although the Respondent contends that by paying two days backpay it acted in full accord with the arbitrator's award, the Authority finds that this contention is not sustained. Rather, in agreement with the General Counsel and the Charging Party, the Authority finds that the award on its face clearly requires the payment of four days backpay. The Respondent, although conceding that it only paid two days backpay, did not file exceptions to the award pursuant to section 7122(a) of the Statute. In these circumstances, and based on the rationale more fully explicated in Department of Defense, supra, the Authority concludes that the Respondent failed to fully comply with Arbitrator Williams' October 22, 1982 award pursuant to the requirements of section 7122 of the Statute, and thus, violated section 7116(a)(1) and (8) of the Statute. /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 U.S. Immigration and Naturalization Service shall: 1. Cease and desist from: (a) Failing and refusing to fully implement Arbitrator Timothy D. W. Williams' October 22, 1982 arbitration award by failing to provide employee James M. Murray with four days backpay as provided for in the award. (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) Fully comply with Arbitrator Timothy D. W. Williams' October 22, 1982 arbitration award by providing employee James M. Murray with four days backpay as provided for in the award. (b) Post at its Portland, Oregon District Office 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 District Director, 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 IX, 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., December 18, 1984 /s/ Henry B. Frazier III Henry B. Frazier III, Acting Chairman /s/ Ronald W. Haughton Ronald W. Haughton, 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 Timothy D. W. Williams' October 22, 1982 arbitration award by failing to provide employee James M. Murray with four days backpay as provided for in the award. WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of their rights assured by the Statute. WE WILL fully comply with Arbitrator Timothy D. W. Williams' October 22, 1982 arbitration award by providing employee James M. Murray with four days backpay as provided for in the award. (Agency or Activity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, Region IX, whose address is: 530 Bush Street, Room 542, San Francisco, California 94108, and whose telephone number is: (415) 556-8106. --------------- FOOTNOTES$ --------------- /1/ The Charging Party, AFGE Local 1589, has been recognized as the agent and local representative for the AFGE pursuant to the terms of Respondent and AFGE's nationwide agreement for matters affecting employees of the Respondent's Portland, Oregon District. /2/ Section 7122(a) of the Statute provides that: (a) Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title). If upon review the Authority finds that the award is deficient-- (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor-management relations; the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations. /3/ In view of this conclusion, the Authority finds it unnecessary to determine whether the Respondent's conduct was also in violation of section 7116(a)(5) of the Statute.