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



[ v18 p395 ]
18:0395(52)CA
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 fi