16:0840(118)CA - Justice, INS, Washington, DC and AFGE Local 1589 -- 1984 FLRAdec CA



[ v16 p840 ]
16:0840(118)CA
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 A