22:0200(20)CA - Army Adjutant General Publications Center, St. Louis, MO and AFGE Local 2761 -- 1986 FLRAdec CA



[ v22 p200 ]
22:0200(20)CA
The decision of the Authority follows:


 22 FLRA No. 20
 
 UNITED STATES ARMY 
 ADJUTANT GENERAL PUBLICATIONS
 CENTER, ST. LOUIS, MISSOURI
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 2761
 Charging Party
 
                                            Case NO. 7-CA-40064
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based on a stipulation of facts by the parties who have
 agreed that no material issue of fact exists.  The General Counsel filed
 a brief for the Authority's consideration.
 
    The complaint alleges that the Respondent, the United States Army,
 Adjutant General Publications Center, St. Louis, Missouri, violated
 section 7116(a)(1) and (5) of the Federal Service Labor-Management
 Relations Statute (the Statute) by failing to comply with an arbitration
 award which resolved a grievance filed under the terms of the negotiated
 grievance procedure between the Respondent and the American Federation
 of Government Employees, AFL-CIO, Local 2761 (the Union).  The
 arbitrator's award dealt with the termination of the Union president.
 This case raises a question which has not been addressed previously by
 the Authority -- whether the Authority has jurisdiction to review in an
 unfair labor practice proceeding the alleged noncompliance with an
 arbitration award involving a section 7121(f) subject matter (a
 termination), where it would not have jurisdiction under section 7122 of
 the Statute to review the substance of the award.
 
                                II.  Facts
 
    A grievance over the termination of Union president Dominic J.
 Licavoli by the Respondent for striking a supervisor was filed pursuant
 to the parties' negotiated negotiated grievance procedure and the matter
 was eventually submitted to arbitration.  On August 5, 1983, Arbitrator
 Peter J. Maniscalco issued his decision and award setting aside
 Licavoli's termination on the ground that he had been provoked.  On
 August 25, 1983, the Respondent sent the Arbitrator a letter requesting
 that he clarify his award.  Specifically, the Respondent asked the
 Arbitrator to "reconsider your arbitration decision and modify your
 decision to consider what lesser penalty other than removal, if any,
 should be imposed upon the grievant." The Arbitrator responded in a
 letter dated August 30, 1983, in which he explained that he " . . . did
 consider the possibility of mitigation but I did not grant that, due to
 the fact that I felt this was a case where provocation was present and
 therefore, to have imposed any penalty would have been unjust."
 Notwithstanding the above, on October 17, 1983, the Respondent informed
 Licavoli that he was to be suspended for 60 days for the conduct that
 had originally led to his termination.
 
                    III.  Positions of the Parties /1/
 
    The General Counsel argues that the Respondent failed to comply with
 the Arbitrator's award when it informed Licavoli that he would be
 suspended for 60 days despite the Arbitrator's decision rejecting the
 imposition of any disciplinary action.  Further, citing Authority
 precedent, the General Counsel argues that the Authority has
 jurisdiction to review an agency's noncompliance with an arbitrator's
 award involving an adverse action under 5 U.S.C. Section 7512 when, as
 here, the agency has refused to comply with that award and has not
 sought to appeal it through the appropriate statutory procedures.
 
                               IV.  Analysis
 
    A.  Statutory scheme for review under section 7122(a)
 
    Under section 7122(a) of the Statute, either party to arbitration may
 file exceptions with the Authority to an arbitrator's award other than
 an award relating to a matter described in section 7121(f).  /2/ If a
 party fails or refuses to comply with an arbitrator's award following
 the Authority's denial of exceptions filed under section 7122(a), or if
 no timely exceptions to such award are filed but either party thereafter
 fails or refuses to comply with the award, the Authority will find that
 such conduct constituted an unfair labor practice.  In such cases, the
 Authority has found that the party is failing to comply with the
 provisions of section 7122(b) /3/ in violation of section 7116(a)(1) and
 (8) of the Statute.  /4/ Department of Health and Human Services, Region
 II, 15 FLRA 710 1984);  sub nom. United States Marshals Service v. FLRA,
 778 F.2d Logistics Command, Wright-Patterson Air Force Base, Ohio, 15
 FLRA 151 (1981), affirmed sub nom. Department of Justice Bureau of
 Prisons (Washington, D.C.) and Federal Correctional Institution
 (Danbury, Connecticut), 20 FLRA NO 5 (1985), enforced sub nom. U.S.
 Department of Justice and Department of Justice, Bureau of Prisons, et
 al. v. FLRA, NOS. 85-4167 and 85-4179 (2nd Cir. May 30, 1986).
 
    B.  Statutory scheme for review under section 7121(f)
 
    Where the arbitrator's award involves a matter covered by section
 7121(f), such as a termination, the Respondent is precluded by section
 7122(a) of the Statute from filing exceptions to the award with the
 Authority.  /5/ Under section 7121(e) of the Statute, /6/ matters
 involving adverse actions pursuant to section 7512 of title 5 of the
 United States Code may be raised under the appellate procedures of the
 Merit Systems Protection Board (MSPB) or under the parties' negotiated
 grievance procedure if such matters have not been excluded.  Where, as
 here, the latter avenue is pursued and the matter eventually goes to
 arbitration, the arbitrator is to be governed by section 7701(c)(1) of
 title 5, United States Code, pertaining to the appellate procedures of
 MSPB.  In addition, section 7121(f) of the Statute states that section
 7703, which deals with judicial review of final MSPB decisions, also
 applies to arbitration awards pertaining to matters covered under
 sections 4303 and 7512.  The courts have accepted review of an
 arbitrator's decision under section 7121(f).  /7/ Thus, it appears clear
 that matters covered by sections 7512 and 4303 were set off from other
 arbitration issues to assure conformity between arbitrators and the
 MSPB.  In the House-Senate Conference Report No. 95-1717, October 5,
 1978, the Conferees adopted the Senate's bill requiring arbitrators to
 "follow the same rules governing burden of proof and standard of proof
 that govern adverse actions before the Board . . . in order to promote
 consistency in the resolution of these issues, and to avoid forum
 shopping." /8/
 
    Pursuant to this framework for judicial review set forth in section
 7121(f) and section 7703, agencies adversely affected or aggrieved by
 the arbitrator's award in these matters are not entitled to obtain
 judicial review.  However, section 7703(d) provides that the Director of
 the Office of Personnel Management (OPM) may seek to obtain review "if
 the Director determines, in his discretion, that the Board (or
 arbitrator) erred in interpreting a civil service law, rule, or
 regulation affecting personnel management and that the Board's (or
 arbitrator's) decision will have a substantial impact on a civil service
 law, rule, regulation, or policy directive." Where OPM seeks review, the
 granting of the petition is at the discretion of the U.S. Court of
 Appeals for the Federal Circuit.  /9/ In the instant case, only the
 Director of OPM and not the Respondent, as the employing agency, was
 entitled to seek judicial review.  The courts have held "that the
 Director of the OPM loses his right to appeal final orders or decisions
 of the MSPB and arbitrators unless he files a petition for review within
 thirty days of the time he is put on notice of those decisions." Devine
 v. White, 697 F.2d 421, 430 (D.C. Cir. 1983).  Since such a petition for
 review was not filed within the statutory time limit in this case
 (section 7703(b)(1)), the award must be considered final and binding and
 the only remaining issue here is whether the Authority has jurisdiction
 over matters of compliance with the award.
 
    C.  Compliance
 
    As previously noted by the Authority, Congress has established a
 mechanism for challenging the propriety of arbitration awards covered by
 section 7122(a) of the Statute.  In applying section 7122(b), where no
 exceptions have been filed, the Authority has held that it will not
 review the substance of the arbitrator's award in the unfair labor
 practice proceeding, but will find that noncompliance with the award is
 a violation.  See Wright-Patterson Air Force Base, and United States
 Marshals Service, cited previously.  If, under section 7122(b), a party
 fails to file exceptions during the 30 day period following the award,
 such award becomes final and binding and the Authority will not review
 the merits of the award in a subsequent unfair labor practice
 proceeding.  The Authority stated that to allow for such a review would
 circumvent Congressional intent with respect to statutory review
 procedures and the finality of arbitration awards.  See also Department
 of Defense, Department of the Navy, United States Marine Corps, United
 States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA
 686 (1984).
 
    While it is clear that the Authority does not have jurisdiction to
 review exceptions to an arbitrator's award falling within section
 7121(f) of the Statute, the question of jurisdiction over matters of
 compliance with such an award in an unfair labor practice proceeding has
 not been previously addressed by the Authority.  However, like the
 Authority's decisions under section 7122(b) of the Statute, it seems
 clear that a final and binding arbitration award in an employee's favor
 relating to any of the matters covered by section 4303 or section 7512
 could be enforced through the unfair labor practice procedures of the
 Statute without reference to the merits of the award.  In the
 Authority's view, once such an award has become final and binding,
 regardless of the subject matter, the Authority's review concerning
 matters of compliance in an unfair labor practice proceeding without
 reference to the substance of the award does not conflict with
 Congressional intent or the specific statutory procedures for review as
 to the merits of the award. The Authority notes that there is no
 indication in the Statute or its legislative history that awards which
 involve section 7121(f) matters, once they have become final, are any
 less binding than awards under section 7122(b) which are reviewable by
 the Authority.  Indeed, the Conferees supported the finality of
 arbitration awards.  In this regard, as stated by the Committee on
 Conference in its Report which accompanied the bill ultimately enacted
 and signed into law:  /10/
 
          The House provides that if no exception to an arbitrator's
       award is filed with the Authority, the award "shall be final and
       binding" (section 7122(b)).  The Senate contained no comparable
       provision.  The conferees adopted the House provision.  The intent
       of the House in adopting this provision was to make it clear that
       the awards of arbitrators, when they become final, are not subject
       to further review by any other authority or administrative body,
       including the Comptroller General.  (Emphasis added.)
 
    Moreover, even though the first sentence of section 7122(b) refers to
 a failure to file an exception under subsection (a) which subsection
 specifically excludes section 7121(f) matters, there is no indication
 given the statutory scheme that the second sentence, "(a)n agency shall
 take the actions required by an arbitrator's final award," should not
 appropriately apply also to those awards that become final by reference
 to other law such as 5 U.S.C. Section 7703(d).  In other words, once an
 award becomes final and binding, any substantive differences or
 differences in review forum become meaningless.
 
    Thus, in the Authority's view, the statutory limitations on review of
 awards relating to section 7121(f) only extend to substantive review of
 such awards and, where an arbitration award is final, Authority review
 of compliance with the award does not conflict with the concerns
 expressly stated by Congress.  Therefore, the Authority finds, in the
 circumstances of this case, that inasmuch as the award in question
 became final and binding when no timely appeal was filed by the Director
 of OPM under section 7703(d) of title 5, United States Code, and review
 of compliance would not involve a determination concerning the merits of
 the award, the Authority has jurisdiction to order compliance with the
 arbitrator's award in this unfair labor practice proceeding.
 
    Having resolved the threshold jurisdictional issue, the Authority
 further finds that the Respondent's refusal to comply with Arbitrator
 Maniscalco's award dated August 5, 1983, interferes with, restrains and
 coerces bargaining unit employees in the exercise of their rights
 established under the Statute, in violation of section 7116(a)(1).  /11/
 In this regard, the Authority notes that it is well established that an
 employee's right to file and process grievances under a collective
 bargaining agreement is protected activity within the meaning of section
 7102 of the Statute, /12/ and that management's actions which tend to
 interfere with or restrain the exercise of such rights constitutes
 unlawful interference in violation of section 7116(a)(1) of the Statute.
  Social Security Administration, Baltimore, Maryland, 18 FLRA NO. 33
 (1985);  Internal Revenue Service and Brooklyn District Office, 6 FLRA
 642 (1981);  United States Department of Treasury, Bureau of Alcohol,
 Tobacco and Firearms, Chicago, Illinois, 3 FLRA 724 (1980).  Thus, an
 agency's failure to comply with an arbitrator's award would, in effect,
 prevent an employee from exercising such protected activity and
 constitute an unlawful interference with an employee's right to pursue a
 grievance in violation of section 7116(a)(1) of the Statute.
 
                              V.  Conclusion
 
    The Authority has considered all of the facts and circumstances of
 this case, including the positions of the parties, and concludes as
 noted above that the Respondent violated section 7116(a)(1) of the
 Statute by refusing to comply with Arbitrator Maniscalco's award dated
 August 5, 1983.
 
                                   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 United States Army, Adjutant General
 Publications Center, St. Louis, Missouri shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to fully implement Arbitrator Peter J.
 Maniscalco's arbitration award rendered on August 5, 1983 by imposing a
 60 day suspension on Dominic J. Licavoli for the conduct that the
 Arbitrator found was provoked and for which no penalty should have been
 imposed.
 
    (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 Peter J. Maniscalco's August 5, 1983
 arbitration award by revoking the 60 day suspension leveled against
 Dominic J. Licavoli for the conduct that the Arbitrator found was
 provoked and for which no penalty should have been imposed.
 
    (b) Post at its 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 Commander of the United States
 Army Adjutant General Publications Center, St Louis, Missouri, 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 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 VII, 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 23, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Respondent did not file a brief for the Authority's
 consideration.
 
    (2) Section 7121(f) of the Statute provides:
 
                    Section 7121.  Grievance procedures
 
                       . . . . . . .
 
 
          (f) In matters covered under sections 4303 and 7512 of this
       title which have been raised under the negotiated grievance
       procedure in accordance with this section, section 7703 of this
       title pertaining to judicial review shall apply to the award of an
       arbitrator in the same manner and under the same conditions as if
       the matter had been decided by the (Merit Systems Protection)
       Board.  In matters similar to those covered under sections 4303
       and 7512 of this title which arise under other personnel systems
       and which an aggrieved employee has raised under the negotiated
       grievance procedure, judicial review of an arbitrator's award may
       be obtained in the same manner and on the same basis as could be
       obtained of a final decision in such matters raised under
       applicable appellate procedures.
 
    (3) Section 7122(b) provides:
 
          (b) If no exception to an arbitrator's award is filed under
       subsection (a) of this section during the 30-day period beginning
       on the date the award is served on the party, the award shall be
       final and binding.  An agency shall take the actions required by
       an arbitrator's final award.  The award may include the payment of
       backpay (as provided in section 5596 of this title).
 
    (4) Section 7116 provides in pertinent part:
 
                   Section 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency --
 
          (10) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                . . . . . . .
 
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
    (5) See, for example, National Weather Service Employees Organization
 (MEBA, AFL -- CIO) and National Weather Service, Western Region, 17 FLRA
 622 (1985);  U.S. Army Missile Command, Redstone Arsenal, Alabama and
 American Federation of Government Employees, AFL -- CIO, Local Union
 1858, 17 FLRA 377 (1985);  and National Treasury Employees Union,
 Chapter 12 and Internal Revenue Service, Birmingham District, 17 FLRA
 358 (1985).
 
    (6) Section 7121(e)(1) and (2) of the Statute provides:
 
                    Section 7121.  Grievance procedures
 
          (e)(1) Matters covered under sections 4303 and 7512 of this
       title which also fall within the coverage of the negotiated
       grievance procedure may, in the discretion of the aggrieved
       employee, be raised either under the appellate procedures of
       section 7701 of this title or under the negotiated grievance
       procedure, but not both.  Similar matters which arise under other
       personnel systems applicable to employees covered by this chapter
       may, in the discretion of the aggrieved employee, be raised either
       under the appellate procedures, if any, applicable to those
       matters, or under the negotiated grievance procedure, but not
       both.  An employee shall be deemed to have exercised his option
       under this subsection to raise a matter either under the
       applicable appellate procedures or under the negotiated grievance
       procedure at such time as the employee timely files a notice of
       appeal under the applicable appellate procedures or timely files a
       grievance in writing in accordance with the provisions of the
       parties' negotiated grievance procedure, whichever event occurs
       first.
 
          (2) In matters covered under sections 4303 and 7512 of this
       title which have been raised under the negotiated grievance
       procedure in accordance with this section, an arbitrator shall be
       governed by section 7701(c)(1) of this title, as applicable.
 
    (7) See, for example, Devine v. Levin, 739 F.2d 1567 (Fed. Cir.
 1984);  Devine v. Brisco, 733 F.2d 867 (Fed. Cir. 1984);  Devine v.
 Sutermeister, 724 F.2d 1558 (Fed. Cir. 1983);  and Devine v. White, 697
 F.2d 421 (D.C. Cir. 1983).
 
    (8) Conference Report on S.2640, Civil Service Reform Act of 1978,
 H.R. Rep. NO. 1717, 95th Cong., 2d Sess. 157 (1978), reprinted in 1978
 U.S. Code Cong. & Ad. News 2860, 2891.
 
    (9) Civil Service Reform Act, 5 U.S.C. Sections 7703(b)(1) and
 7703(d) (1982 & Supp. II 1984).
 
    (10) Conference Report on S. 2640, supra note 8, at 158.
 
    (11) The General Counsel failed to allege a section 7116(a)(8)
 violation in the complaint, and therefore we do not decide whether the
 Respondent also committed such a violation.  Further, in view of the
 above conclusion, the Authority finds it unnecessary to pass upon
 whether the Respondent also violated section 7116(a)(5) of the Statute.
 
    (12) Section 7102 provides in pertinent part:
 
                     Section 7102.  Employees' rights
 
          Each employee shall have the right to form, join, or assist any
       labor organization, or to refrain from any such activity, freely
       and without fear of penalty or reprisal, and each employee shall
       be protected in the exercise of such right.
 
 
 
 
 
                                 APPENDIX
 
                          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 Peter J.
 Maniscalco's August 5, 1983 arbitration award by imposing a 60 day
 suspension on Dominic J. Licavoli for the conduct that the Arbitrator
 found was provoked and for which no penalty should have been imposed.
 
    WE WILL NOT in any like or related manner int