22:0647(71)CA - HQ, Army, Washington, DC and Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, MO and NAGE R14-32, SEIU -- 1986 FLRAdec CA
[ v22 p647 ]
The decision of the Authority follows:
22 FLRA No. 71 HEADQUARTERS, DEPARTMENT OF THE ARMY WASHINGTON, D.C. AND U.S. ARMY TRAINING CENTER ENGINEER AND FORT LEONARD WOOD FORT LEONARD WOOD, MISSOURI Respondents and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, R14-32, SEIU/AFL-CIO Charging Party Case No. 7-CA-40084 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 alleges in its complaint that the Respondents committed unfair labor practices in violation of section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by failing and refusing to comply with an interim arbitration award and a supplement to that award, by refusing to consult or negotiate in good faith with the Union, and by interfering with its employees' exercise of their rights under the Statute. Although both the General Counsel and the Charging Party have submitted briefs, only the General Counsel's brief was timely filed and will be considered. The Respondents did not submit a brief. II. Background The National Association of Government Employees, R14-32, SEIU/AFL-CIO (NAGE or Union), is the exclusive representative of certain of the Respondents' employees. At all times material to this matter, NAGE and Respondent Fort Leonard Wood have been parties to a collective bargaining agreement providing for binding arbitration as part of the grievance procedure. On January 30, 1980, Respondent Fort Leonard Wood removed a unit employee for alleged misconduct. The dispute eventually reached arbitration under the parties' collective bargaining agreement. The Arbitrator issued an interim award on May 20, 1983, ordering the Union and the employee to elect within 35 days whether to obtain a psychiatric evaluation of the employee. The Arbitrator further ordered that, in any event, a written report should be submitted to him within 90 days, setting forth the arrangements for the employee's evaluation or the reasons for the parties' failure to reach an agreement. The Arbitrator retained jurisdiction to render a final award. Respondent Fort Leonard Wood filed an "Objection to Interim Award, dated 20 May, 1983, and Request for Reconsideration" on July 1, 1983. The objection concerned the substance of the interim award. The Arbitrator then issued a supplement to the interim award on August 12, 1983. The supplement essentially affirmed the initial award and required that the written report mandated by the initial award be submitted not later than October 11, 1983. Respondent Fort Leonard Wood notified NAGE and the Arbitrator on September 20, 1983, that it had been instructed by Respondent Headquarters not to recognize the authority of an arbitrator to issue an interim award, and to decline to participate further in the procedures specified in the interim award. NAGE attempted to comply with the procedures on October 27, 1983, but the Respondent has refused. No final award has been issued. III. Position of the General Counsel First, the General Counsel contends that the interim award and its supplement constitute final interlocutory awards because they were not appealed by Respondent Fort Leonard Wood or Respondent Headquarters, and that the Respondents' failure and refusal to comply with those awards, as required under section 7121, constitutes a violation of section 7116(a)(8) by both. The General Counsel concedes that the Authority generally will not consider such interlocutory matters, but it urges the Authority to do so here because there are no other means of resolving the issue of the Respondents' duty to comply with the interim awards. The General Counsel also asserts in its complaint that the instruction by Respondent Headquarters to Respondent Fort Leonard Wood not to comply with the interim award and its supplement, coupled with the action of Fort Leonard Wood in following that instruction, constitutes a violation of section 7116(a)(1). It argues that, since Fort Leonard Wood was the level of exclusive recognition, the involvement of Headquarters in the decision not to comply with the interim awards resulted in improper interference with the collective bargaining relationship. Finally, the General Counsel contends that the Respondents' failure and refusal to comply with the interim awards also violates section 7116(a)(5). It argues that such failure and refusal "injected a new term and condition into the bargaining relationship without affording the Union prior notice and an opportunity to engage in pre-implementation bargaining" in good faith. IV. Analysis In Department of Labor, Employment Standards Administration/Wage and Hour Division, Washington, D.C., 10 FLRA 316 (1982), the Authority reconsidered its previous decisions on whether a refusal to participate in arbitration proceedings under a negotiated grievance procedure is inconsistent with section 7121 of the Statute and consequently violates section 7116(a)(1) and (8) or (b)(1) and (8), as applicable. The Authority concluded that neither the language of section 7121 nor its legislative history "provides a basis for excusing (a) party from participating in the mechanism mandated by Congress in section 7121 for resolving grievances not satisfactorily settled by the parties at earlier stages of the negotiated grievance procedure." 10 FLRA at 320. The Authority noted that a refusal to participate in arbitration proceedings could result in the hindrance or obstruction of grievance resolution by binding arbitration, contrary to the mandate and intent of Congress in enacting section 7121. The Authority therefore ruled that a refusal by a party to participate in "the procedures for the settlement of grievances" conflicts with section 7121 of the Statute. This principle was subsequently applied in Department of the Army, 83rd United States Army Reserve Command, Columbus, Ohio, 11 FLRA 55 (1983), where the parties had presented their positions to the arbitrator on whether there first should be a separate hearing on a question of the arbitrability of the grievance. When the arbitrator decided not to hold a separate hearing, the agency notified the arbitrator and the union that it refused to participate in the proceeding and that it considered the hearing cancelled. On the basis of the Employment Standards Administration case, the Authority determined that the agency had failed to comply with the requirements of section 7121 and therefore had violated section 7116(a)(1) and (8) of the Statute. The Authority held that, whatever the agency's position on the propriety of the arbitrator's procedural determination, the agency was obligated to proceed to arbitration and, if dissatisfied with the award, take the appropriate action of filing exceptions to the award under section 7122(a) of the Statute. 83rd U.S. Army Reserve Command, 11 FLRA 56 n.1. Although both the Employment Standards Administration and the 83rd U.S. Army Reserve Command cases involved the refusal to participate in any proceedings before the arbitrators, we find in this case that the refusal to continue to participate in the proceedings before the Arbitrator likewise failed to comply with the requirements of section 7121. As similarly concluded in Employment Standards Administration, neither the language of section 7121 nor its legislative history provides a basis for excusing a party's continued participation in the procedures for the settlement of grievances. Further, in this case the Respondents' refusal to continue to participate in the proceedings before the Arbitrator has resulted in the obstruction of the resolution of a grievance by binding arbitration, contrary to the mandate and intent of Congress. See Employment Standards Administration at 321. As the Authority indicated in 83rd U.S. Army Reserve Command, whatever the position of the Respondents on the propriety of the Arbitrator's interim awards, the Respondents were obligated to proceed with the arbitration proceedings absent appropriate action, if any, to challenge those awards immediately. /2/ We note that the Respondents admitted in their joint answer to the General Counsel's complaint, and then also stipulated, that Respondent Headquarters "instructed" Respondent Fort Leonard Wood not to comply with the Arbitrator's interim awards, and Fort Leonard Wood followed that instruction. We note further that, before receiving Headquarter's instruction, Fort Leonard Wood had participated actively in the arbitration proceeding, as discussed above. The Authority has repeatedly held that, when agency management at a higher level prevents agency management at a subordinate level of exclusive recognition from complying with its obligations under the Statute by "directive," "requirement," or "direction," the higher-level management entity violates section 7116(a)(1) and (8) of the Statute. /3/ The Authority has held further that, where the subordinate entity is thus left with no discretion to comply with its statutory obligations, that entity will not also be found to have violated section 7116(a). /4/ Consistent with this precedent, we find here that Respondent Headquarters' "instruction" to Respondent Fort Leonard Wood not to comply with the Arbitrator's interim awards constitutes a violation of section 7116(a)(1) and (8) on Headquarters' part. We view the Respondents' use of the term "instruction" as the functional equivalent of the terms "directive," "requirement," and "direction," /5/ which have been used most frequently in prior Authority decisions regarding "interference" violations under section 7116(a)(1). /6/ Further Respondent Headquarters' instruction not to comply with the Arbitrator's interim awards afforded Respondent Fort Leonard Wood no discretion to do otherwise, and rendered its non-compliance with the awards merely ministerial in nature. We therefore find that Fort Leonard Wood's action in following Headquarters' instruction cannot be deemed to constitute an independent violation of section 7116(a)(1) and (8) by Fort Leonard Wood. We shall therefore dismiss that allegation. Finally, although the Respondents admitted that they refused and failed to comply with the Arbitrator's interim awards, we cannot find that, in doing so, they also refused and failed to consult or negotiate with the Union in good faith, as alleged. The General Counsel argues in support of this allegation that, by not complying with the interim awards, the Respondents "injected a new term and condition into the bargaining relationship without affording the Union prior notice and an opportunity to engage in pre-implementation bargaining." We find that the Respondents, by their actions, did not establish new conditions of employment requiring negotiation, but rather refused to proceed further with the arbitration process. Since these circumstances created no bargaining obligation, we shall dismiss the section 7116(a)(5) allegation as to both Respondents. Conclusion Based on the above analysis, we conclude that Respondent Headquarters has violated section 7116(a)(1) and (8) of the Statute, as alleged, but that Respondent Fort Leonard Wood has not. We conclude additionally that neither of the Respondents has been shown to have violated section 7116(a)(5), as further alleged. ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority ORDERS that the Department of the Army Headquarters in Washington, D.C., shall: 1. Cease and desist from: a. Instructing Fort Leonard Wood not to comply with the Arbitrator's interim awards or otherwise interfering with the pending arbitration regarding a grievance filed by the National Association of Government Employees, R14-32, SEIU/AFL-CIO, the employees' exclusive representative at the Fort Leonard Wood, Missouri, facility, in connection with the removal of a unit employee, contrary to the requirements of section 7121 of the Statute. b. In any like or related manner interfering with, restraining, or coercing 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. Upon the request of the National Association of Government Employees, R14-32, SEIU/AFL-CIO, permit Fort Leonard Wood to comply with the Arbitrator's interim awards and otherwise resume full participation in the arbitration proceedings regarding the removal of the unit employee. b. Post at Headquarters and at its Fort Leonard Wood, Missouri, facility, copies of the attached Notice, on forms furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed personally by the Administrator of the agency, 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. Notify the Regional Director of 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. IT IS FURTHER ORDERED that the allegation in the complaint regarding Fort Leonard Wood's violation of section 7116(a)(1), (5), and (8) of the Statute is DISMISSED, as is the allegation regarding Army Headquarters' violation of section 7116(a)(5) of the Statute. Issued, Washington, D.C. July 21, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7116 provides as follows: Section 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency -- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . . . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; . . . . . . . . . (8) to otherwise fail or refuse to comply with any provision of this chapter. (2) The Authority notes in this regard that the interim awards relate to a removal action as to which exceptions may not be filed with the Authority under the Statute. Thus, whatever action might appropriately have been available to challenge the interim awards would necessarily have involved the Office of Personnel Management under 5 U.S.C. Section 7703(d) which effectively provides that, in certain circumstances, the Director of OPM may obtain judicial review of any final order or decision of an arbitrator in these types of matters. (3) See, for example, U.S. Department of Justice and Department of Justice Bureau of Prisons (Washington, D.C.) and Federal Correctional Institution (Danbury, Connecticut), 20 FLRA No. 5 (1985), enforced, 792 F.2d 25 (2d Cir. 1986); Department of Health and Human Services, Region II, 15 FLRA 710, 711 n.2 (1984); Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385, 388 (1982). (4) See cases cited in footnote 3 above. (5) A superior's "instruction" is, by definition, the same as a superior's "direction" or "order" in allowing for no course of action but to follow the instruction. See WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (1985). (6) See cases cited in footnote 3 above. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION 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 instruct Fort Leonard Wood not to comply with the Arbitrator's interim awards or otherwise interfere with the pending arbitration regarding a grievance filed by the National Association of Government Employees, R14-32, SEIU/AFL-CIO, the employees'