18:0395(52)CA - GSA, Washington, DC and AFGE -- 1985 FLRAdec CA

[ v18 p395 ]
The decision of the Authority follows:

 18 FLRA No. 52
 Charging Party
                                            Case No. 9-CA-40239
                            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, General Services
 Administration, Washington, D.C. violated section 7116(a)(1), (5) and
 (8) of the Federal Service Labor-Management Relations Statute (the
 Statute) by failing to comply with an arbitration award rendered on July
 11, 1983, and a make-whole award issued on October 21, 1983 by
 Arbitrator Philip Kienast, pursuant to a grievance filed under the terms
 of the negotiated grievance procedure to a grievance filed under the
 terms of the negotiated grievance procedure between the Respondent and
 the American Federation of Government Employees, AFL-CIO (AFGE).
 Arbitrator Kienast's award dealt with the Respondent's refusal to
 compensate Janet Hayden, a Union representative at Respondent's Auburn,
 Washington facility, for 37.5 hours of work she performed typing
 grievances on behalf of the AFGE.  The arbitrator ruled that the
 Respondent violated Articles 3, 6 and 34 of the parties' National
 agreement by denying official time to Hayden for such activity.  He
 ordered Respondent to cease from instructing its supervisors to deny
 official time to Hayden for the typing of grievances and ordered
 Respondent to make Hayden whole for any time she had spent typing such
 grievances.  The award further provided that if the parties were unable
 to agree on an appropriate make-whole remedy within thirty days, the
 arbitrator would decide the remedy.  On October 21, 1983, after being
 informed by the parties that they were unable to reach agreement,
 Arbitrator Kienast issued his make-whole award which required that
 Hayden be compensated at the appropriate hourly rate for 37.5 hours
 worked typing grievances.
    The Respondent filed its exception to Arbitrator Kienast's award with
 the Authority in General Services Administration and American Federation
 of Government Employees, Council 236, Case No. 0-AR-670, on November 18,
 1983.  On April 6, 1984, the Authority issued its Decision therein
 denying Respondent's exception.  /1/ Since April 6, 1984, and continuing
 to date, Respondent has failed and refused to make any compensation to
 Janet Hayden for the hours she devoted to typing grievances in
 accordance with the award of Arbitrator Kienast.
    In United States Marshals Service, 13 FLRA 351 (1983), appeal
 docketed, No. 83-7963 (9th Cir. Dec. 30, 1983), the Authority concluded
 that where an agency has filed timely exceptions to the arbitrator's
 award pursuant to section 7122(a) of the Statute, /2/ and the Authority
 has denied the exceptions, the agency must implement such award and a
 subsequent failure or refusal to do so constitutes a violation of
 section 7116(a)(1) and (8) of the Statute.  /3/ In so concluding, the
 Authority adopted the Judge's finding that:
          The provisions of section 7122 of the Statute assure that the
       arbitrator's award will culminate in a final and binding status.
       Thus, the Statute provides rather elaborate procedures to assure a
       peaceful final and binding resolution of disputes.  To hold that
       one may abrogate with immunity the clear obligation which follow
       from the statutory design would be ludicrous indeed, especially
       where the Statute itself in section 7116(a)(8) specifically
       declares failure or refusal to comply with any provision of the
       Statute to be an unfair labor practice.
 In the present case, the