18:0395(52)CA - GSA, Washington, DC and AFGE -- 1985 FLRAdec CA
[ v18 p395 ]
The decision of the Authority follows:
18 FLRA No. 52 GENERAL SERVICES ADMINISTRATION WASHINGTON, D.C. Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO 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 Respondent filed timely exceptions to the arbitrator's award, which exception was denied by the Authority. Yet the Respondent has failed and refused to implement the arbitrator's award. Accordingly, based on the rationale in United States Marshals Service, the Authority finds that the Respondent violated section 7116(a)(1) and (8) of the Statute by its failure to comply with Arbitrator Kienast's October 21, 1983 award. /4/ 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 General Services Administration, Washington, D.C. shall: 1. Cease and desist from: (a) Failing and refusing to implement Arbitrator Philip Kienast's October 21, 1983 arbitration award by failing to provide employee Janet Hayden with 37.5 hours of straight time pay found to be the appropriate hourly rate as provided for in the award. (b) In any like or related manner interfering with, restraining, or coercing its 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 Federal Service Labor-Management Relations Statute: (a) Comply with Arbitrator Philip Kienast's October 21, 1983 arbitration award by providing employee Janet Hayden with 37.5 hours of straight time pay as provided for in the award. (b) Post at its Auburn, Washington facility 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 Regional Director of General Services Administration Region 10, 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 Federal Labor Relations 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., June 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., 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 implement Arbitrator Philip Kienast's October 21, 1983 arbitration award by failing to provide employee Janet Hayden with 37.5 hours of straight time pay found to be the appropriate hourly rate as provided for in the award. 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 comply with Arbitrator Philip Kienast's October 21, 1983 arbitration award by providing employee Janet Hayden with 37.5 hours of straight time pay 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 arbitrator in Case No. 0-AR-670 ruled that Hayden should be compensated at the appropriate hourly rate which in accordance with National Treasury Employees Union v. Gregg, No. 83-546 (D.D.C. Sep. 28, 1983), is straight time versus overtime and exceptions to that appropriate remedy were denied. /2/ Section 7122(a) of the Statute provides that: Sec. 7112. 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 (other than an award relating to a matter described in section 7121(f) of this title). If upon review the Authority finds 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/ See also U.S. Soldiers and Airmen's Home, Washington, D.C., 15 FLRA No. 26 (1984), appeal docketed sub nom. American Federation of Government Employees, Local 3090 v. FLRA, No. 84-1439 (D.C. Cir. Aug. 24, 1984). /4/ In view of this conclusion, the Authority finds it unnecessary to pass upon whether such conduct was also violative of section 7116(a)(5) of the Statute.