19:0250(31)CA - Navy, Naval Submarine Base, New London, CT and NAGE Local R1-100 -- 1985 FLRAdec CA
[ v19 p250 ]
The decision of the Authority follows:
19 FLRA No. 31 DEPARTMENT OF THE NAVY NAVAL SUBMARINE BASE NEW LONDON, CONNECTICUT Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-100 Charging Party Case No. 1-CA-30308 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, including the stipulation of facts, accompanying exhibits, and the contentions of the parties, the Authority finds: The complaint alleges that the Respondent, Department of the Navy, Naval Submarine Base, New London, Connecticut, violates section 7116(a)(1) and (8) of the Statute by failing to comply with an arbitration award rendered on September 22, 1982, by Arbitrator Albert J. Hoban with regard to a grievance filed pursuant to the December 29, 1980 collective bargaining agreement between the parties. Article IX, Section 5 of the parties' agreement dealt with the payment of overtime to employees who were required to perform unscheduled work-related duties outside their normally scheduled work hours. In pertinent part, the Arbitrator ruled that employees who were called upon to perform work-related activities outside their scheduled work hours were entitled to the two hour minimum overtime provided for in the contract, irrespective of whether the employees were required to return to their actual work station or the Base proper in order to carry out their function. The Respondent did not file exceptions to the arbitrator's award as provided for in section 7122(a) of the Statute. The Respondent complied with the award from approximately September 27, 1982, until August 21, 1983. At that time, the Respondent advised the Charging Party that it was discontinuing the payment of the two hour minimum overtime in the circumstances outlined above because it had determined that such payments were illegal, citing an unpublished Comptroller General decision that had been issued on March 8, 1982. The Charging Party made no bargaining proposals, as it felt the change was impermissible for the reasons stated in the complaint herein. The relevant issue and supporting arguments raised by the parties are substantially similar to those involved in Department of Defense, Department of the Navy, United States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137 (1984), wherein 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. In so concluding, the Authority noted that any defense that compliance with the arbitrator's award would require a party to act illegally must be raised within the context of section 7122 of the Statute and that the Authority will not review the merits of such a contention in the context of a later unfair labor practice proceeding seeking compliance with the award. Accordingly, the Authority concludes herein that the Respondent violated section 7116(a)(1) and (8) of the Statute by ceasing to comply with Arbitrator Hoban's award subsequent to August 21, 1983. /1/ 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 Department of the Navy, Naval Submarine Base, New London, Connecticut, shall: 1. Cease and desist from: (a) Failing and refusing to continue to implement Arbitrator Albert J. Hoban's September 22, 1982 arbitration award by discontinuing the payment of a minimum two hour overtime payment under the circumstances outlined 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 Statute: (a) Fully comply with Arbitrator Albert J. Hoban's September 22, 1982 arbitration award by paying the two hour minimum overtime payment required by the award to employees where appropriate, and make whole any affected employee(s) by paying the two hour minimum overtime payment consistent with the Arbitrator's award, retroactive to August 22, 1983. (b) Post at the Department of the Navy, Naval Submarine Base, New London, Connecticut, 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 Commander, or a 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 ensure 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 I, 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., July 22, 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 or refuse to continue to implement Arbitrator Albert J. Hoban's September 22, 1982 arbitration award by discontinuing the payment of a minimum two hour overtime payment under the circumstances outlined 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 fully comply with Arbitrator Albert J. Hoban's September 22, 1982 arbitration award by paying the two hour minimum overtime payment required by the award to employees where appropriate, and will make whole any affected employee(s) by paying the two hour minimum overtime payment consistent with the Arbitrator's award, retroactive to August 22, 1983. (Activity) Dated: . . . By: (Signature) (Title) 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, Federal Labor Relations Authority, Region I, whose address is: 441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone number is: (617) 223-0920. --------------- FOOTNOTES$ --------------- /1/ In so concluding, the Authority notes that the unpublished Comptroller General decision upon which the Respondent relied when it discontinued the overtime payments called for in Arbitrator Hoban's award was dated some four months prior to the hearing held by the Arbitrator and could have been raised in exceptions to the arbitrator's award.