22:0928(95)CA - DOJ, Bureau of Prisons, Washington, DC and Bureau of Prisons, Federal Correctional Institution, Ray Brook, NY and AFGE Local 3882 -- 1986 FLRAdec CA



[ v22 p928 ]
22:0928(95)CA
The decision of the Authority follows:


 22 FLRA No. 95
 
 UNITED STATES DEPARTMENT OF JUSTICE 
 BUREAU OF PRISONS, WASHINGTON, D.C. 
 AND BUREAU OF PRISONS, FEDERAL CORRECTIONAL 
 INSTITUTION, RAY BROOK, NEW YORK
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3882
 Charging Party
 
                                            Case No. 1-CA-40368
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the Respondent and the General Counsel to the attached Decision
 of the Administrative Law Judge.  The Respondent filed an opposition to
 the General Counsel's exceptions and cross-exceptions and the General
 Counsel filed an opposition to the Respondent's exceptions.  The
 complaint alleged that the Respondent violated section 7116(a)(1), (5)
 and (8) of the Federal Service Labor-Management Relations Statute (the
 Statute) when it failed to comply with the provisions of section 7122(b)
 of the Statute by refusing to implement an arbitration award clarifying
 an earlier award dealing with an employee's termination from employment.
 
                                II.  Facts
 
    A grievance over the termination of Richard Frontera, an employee at
 the Respondent's Ray Brook, New York facility (FCI, Ray Brook), was
 filed pursuant to the parties' negotiated grievance procedure and the
 matter was submitted to arbitration.  On December 16, 1983, Arbitrator
 Dale S. Beach found that there was not just and sufficient cause for the
 adverse action taken.  He issued an award that reduced the penalty to a
 60 calendar day suspension and ordered that "(w)ithin 10 calendar days
 of receipt of this Award Mr. Frontera shall be reinstated to his regular
 job without the loss of any employee benefits." The award also provided
 for backpay to June 10, 1982, the date of discharge, less pay for the
 60-day suspension, and less any possible unemployment compensation or
 wages received from other employment during the period of discharge.
 Upon receipt of the December 16th award, the Respondent determined that
 an appeal should not be filed.  It also decided that Frontera would be
 returned to work in a location other than FCI, Ray Brook.  The
 Respondent did not request the Office of Personnel Management (OPM) to
 take the necessary steps to perfect an appeal to the United States Court
 of Appeals for the Federal Circuit in accordance with the provisions of
 section 7121(f) of the Statute and 5 U.S.C. Section 7703(d).
 
    The Respondent decided not to return Frontera to FCI, Ray Brook.
 Rather, the Respondent reassigned him to the United States Penitentiary,
 Lewisburg, Pennsylvania (USP, Lewisburg).  This was done despite
 vigorous objection by the Charing Party (the Union) that this would not
 satisfy the arbitrator's award.  The Union contacted Arbitrator Beach on
 February 7, 1984, and sought an interpretation of his order that the
 Respondent "reinstate Frontera to his regular job without the loss of
 any employee benefits." The Respondent did not receive proper notice of
 the request for clarification.
 
    On March 1, 1984, without providing the Respondent an opportunity to
 be heard, Arbitrator Beach issued a Clarification of Award, holding that
 Frontera should be reinstated to his regular job as Cook-Foreman at FCI,
 Ray Brook, without the loss of any employee benefits.  In his
 clarification, Arbitrator Beach explained that "(t)he use of the term
 'regular job' in my award means regular job at the Federal Correctional
 Institution at Ray Brook, New York.  Normally when arbitrators say
 'regular job' they mean the same job at the same location held by the
 grievant before his discharge."
 
    The Respondent did not request OPM to take the necessary steps to
 perfect an appeal of the clarified award to the Federal Circuit.
 Instead, the Respondent refused compliance and filed exceptions to the
 clarified award with the Authority.  The Respondent admits that the
 award as clarified has not been implemented.
 
    On June 29, 1984, the Authority in American Federation of Government
 Employees, Local 3882 and Federal Prison System, Ray Brook, New York, 15
 FLRA 204 (1984), dismissed the Respondent's exceptions, noting that it
 had no jurisdiction to review the case, as the arbitration award
 involved a section 7121(f) matter, and referred the Respondent to its
 right to seek judicial review pursuant to 5 U.S.C. Section 7703.  The
 Respondent's motion for reconsideration was denied by the Authority on
 December 11, 1984, on the same grounds.
 
    The assignment of Frontera to USP, Lewisburg, represented an economic
 and personal burden for him.  He did begin working at Lewisburg in early
 1984, but resigned on March 2, 1985, due to such hardship.
 
                          III.  Judge's Decision
 
    The Judge, contrary to the Respondent's contentions, concluded that
 the Authority had jurisdiction to order compliance with section 7121(f)
 arbitration awards.  The Judge found that the sentence in section 7122
 mandating that agencies "shall take the actions required by an
 arbitrator's final award" refers to arbitration awards reviewed by the
 Authority, and to adverse action arbitration awards reviewable by the
 United States Court of Appeals for the Federal Circuit.
 
    The Judge further found that the charge in this case was timely
 filed, finding that the record, at a minimum, establishes that OPM
 received notice of the clarified award through the Respondent, and that
 OPM thereafter took no action to intervene in the arbitration proceeding
 for the purpose of requesting reconsideration as a step toward appeal to
 the Federal Circuit.  Since more than 30 days passed after OPM's receipt
 of notice, OPM's right to proceed further was extinguished.  Therefore,
 the clarified award became final and binding.  He concluded that the
 charge in this case was filed well within six months of the date on
 which the clarified award became final and binding, and within the
 six-month period prescribed by section 7118(a)(4) of the Statute.
 
    The Judge concluded that because the recofd clearly showed that the
 Respondent did not comply with the March 1, 1984 clarified award after
 it became final and binding, the Respondent violated section 7116(a)(1)
 and (8) of the Statute.  The Judge found it unnecessary to pass upon
 whether such conduct was also violative of section 7116(a)(5) of the
 Statute.  The Judge ordered that the Respondent comply with the
 clarified award and make Frontera whole, consistent with applicable law
 and regulation, for any loss of pay he may have suffered by reason of
 his separation (resignation) from Federal service brought about by the
 Respondent's unlawful conduct, and pay to him a sum equal to the amount
 he would have earned or received from the date of his separation to the
 effective date of the offer of reinstatement, less any amount earned
 through other employment during this period of time.  The Judge also
 ordered the Respondent to make Frontera whole, consistent with law and
 regulation, for any monetary losses incurred as a result of the
 Respondent's assignment of Frontera to USP, Lewisburg, for which he has
 not otherwise been reimbursed.
 
                       IV.  Positions of the Parties
 
    The Respondent asserts in its exceptions that:  (1) the Authority
 does not have jurisdiction under section 7122(b) of the Statute to
 enforce the award of an arbitrator issued pursuant to section 7121(e)
 and (f) of the Statute;  (2) the charge in this case was filed more than
 six months after the alleged unfair labor practice occurred;  (3) the
 March 1, 1984 clarified award did not constitute in itself an
 enforceable award because proper service of the request for
 clarification by the Union was never received by the Respondent and
 because it had no opportunity to be heard prior to its issuance;  (4)
 the award violated management's reserved right to assign employees under
 section 7106(a)(2)(A) of the Statute.  The Respondent also excepted to
 the Judge's remedy, questioning whether the complaint should have been
 found to include the matter of Frontera's resignation, and whether the
 remedy exceeds the Authority's powers.  The Respondent also objected to
 several of the Judge's evidentiary rulings and findings of fact.
 
    The General Counsel excepted to the Judge's finding that it was
 unnecessary to pass upon whether the conduct found to be violative of
 section 7116(a)(1) and (8) of the Statute also violated section
 7116(a)(5) of the Statute.  The General Counsel also excepted to the
 Judge's ruling denying its motion to amend the complaint to include the
 allegation that the Respondent's action was also contrary to section
 7121 of the Statute.  Finally, the General Counsel renewed its arguments
 in support of the Judge's rationale as to the timeliness of the unfair
 labor practice charge.
 
                               V.  Analysis
 
    In agreement with the Judge, the Authority finds that it does have
 jurisdiction to order compliance with section 7121(f) arbitration
 awards.  In a recent case, issued subsequent to the Judge's Decision,
 United States Army Adjutant General Publications Center, St. Louis,
 Missouri, 22 FLRA No. 20 (1986), the Authority resolved this very issue.
  It held that, while the Authority does not have jurisdiction to review
 exceptions to the merits of an arbitrator's award falling within section
 7121(f) of the Statute, once such an award has become final and binding,
 the Authority has jurisdiction over matters of compliance with the award
 in an unfair labor practice proceeding.
 
    We agree with the Judge that the clarified award in this case became
 final and binding at the expiration of 30 days after OPM's receipt of
 notice of the award, and that the unfair labor practice charge in this
 case was filed within the six-month period required by section
 7118(a)(4) of the Statute.
 
    The Respondent's exceptions also raise issues as to:  (1) the lack of
 proper service of the request for clarification and the resulting lack
 of an opportunity to be heard by the Arbitrator, and (2) the alleged
 interference with management's reserved rights under section 7106 of the
 Statute.  We find, as did the Judge, that these issues are not litigable
 in this unfair labor practice proceeding, but are matters that go to the
 merits of the award that may only be raised within the appeals
 procedures established by Congress.  See United States Army Adjutant
 General Publications Center, cited above.
 
    There is no dispute that the Respondent has not complied with the
 March 1, 1984 clarified award of Arbitrator Beach, which as we have
 found became final and binding when no timely action was taken by the
 Director of OPM under section 7703(d) of Title 5, United States Code.
 Recognizing that the Authority has jurisdiction to order compliance with
 the Arbitrator's award in this unfair labor practice proceeding, the
 Authority finds that the Respondent's noncompliance is in violation of
 section 7116(a)(1) and (8) of the Statute.  /1/
 
                                VI.  Remedy
 
    The Authority finds that the Judge's recommended remedy is
 appropriate in the circumstances of this case.  In this regard, while we
 affirm the Judge's ruling that the General Counsel's motion to amend the
 complaint be denied, we agree that the Judge's finding upon which he
 fashioned his recommended remedy fell within the scope of the complaint.
 
    The Arbitrator's award obligated the Respondent to reinstate employee
 Frontera to his former position at FCI, Ray Brook, New York.  The
 Respondent ordered him to report to USP, Lewisburg, Pennsylvania.  The
 record shows that Frontera and the Charging Party on his behalf went to
 great lengths in an attempt to persuade the Respondent that the
 reassignment would be a hardship.  While the Respondent gave the reason
 that in cases such as Frontera's it was Bureau policy to reassign the
 employee, it also insisted that in its opinion the reassignment was not
 precluded by the Arbitrator's award.  The Arbitrator's clarification
 clearly showed that the reassignment was inconsistent with the award.
 
    The Judge's finding that the Respondent's failure to comply with the
 award caused Frontera's resignation is supported by the record.
 Accordingly, we find that, but for the Respondent's refusal to comply
 with the Arbitrator's award, Frontera would not have resigned from
 Federal service.  We shall adopt the Judge's recommended Order.  See
 Department of the Treasury, United States Customs Service, New York
 Region, New York, New York, 21 FLRA No. 119 (1986).
 
                             VII.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision, the exceptions and cross-exceptions to that
 Decision, the positions of the parties, and the entire record, /2/ and
 adopts the Judge's findings, conclusions, and recommended Order.  We
 conclude that the Respondent's refusal to reinstate Frontera to his
 regular job at FCI, Ray Brook, New York, without the loss of any
 employee benefits, as required by Arbitrator Beach's award, which had
 become final and binding, constituted a failure to comply with the
 Arbitrator's award and a violation of section 7116(a)(1) and (8) of the
 Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the United States Department of Justice,
 Bureau of Prisons, Washington, D.C, and Bureau of Prisons, Federal
 Correctional Institution, Ray Brook, New York, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to implement the March 1, 1984 Clarification
 of Award issued in FMCS Case No. 82K/24082 by Arbitrator Dale S. Beach,
 by failing and refusing to reinstate Richard Frontera to his regular job
 as a Cook-Foreman at the Federal Correctional Institution, Ray Brook,
 New York.
 
    (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) Comply with the March 1, 1984 Clarification of Award issued in
 FMCS Case No. 82K/24082 by Arbitrator Dale S. Beach, by offering to
 reinstate Richard Frontera to his regular job as a Cook-Foreman at the
 Federal Correctional Institution, Ray Brook, New York, without prejudice
 to his seniority or other rights or privileges.
 
    (b) Make Richard Frontera whole, consistent with applicable laws and
 regulations, for any loss of pay he may have suffered by reason of his
 separation from Federal service brought about by Respondent's unlawful
 conduct, and pay to him a sum equal to the amount he would have earned
 or received from the date of his separation (resignation) on March 2,
 1985, to the effective date of the offer of reinstatement, less any
 amount earned through other employment during this period of time.
 
    (c) Consistent with law and regulation, make Richard Frontera whole
 for any monetary losses incurred as a result of Respondent's assignment
 of Richard Frontera to the United States Penitentiary, Lewisburg,
 Pennsylvania, and for which he has not otherwise been reimbursed.
 
    (d) Post at its Washington, D.C. and Ray Brook, New York 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 Director, Bureau of Prisons, Washington, D.C., 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.
 
    (e) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director of 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 with the Order.
 
    Issued, Washington, D.C., July 30, 1986.
 
                                       /s/ JERRY L. CALHOUN
                                       Jerry L. Calhoun, Chairman
                                       /s/ HENRY B. FRAZIER III
                                       Henry B. Frazier III, 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 the March 1, 1984
 Clarification of Award issued in FMCS Case No. 82K/24082 by Arbitrator
 Dale S. Beach, by failing and refusing to reinstate Richard Frontera to
 his regular job as a Cook-Foreman at the Federal Correctional
 Institution, Ray Brook, New York.
 
    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 the March 1, 1984 Clarification of Award issued
 in FMCS Case No. 82K/24082 by Arbitrator Dale S. Beach, by offering to
 reinstate Richard Frontera to his regular job as a Cook-Foreman at the
 Federal Correctional Institution, Ray Brook, New York, without prejudice
 to his seniority or other rights or privileges.
 
    WE WILL make Richard Frontera whole, consistent with applicable laws
 and regulations, for any loss of pay he may have suffered by reason of
 his separation (resignation) on March 2, 1985, from Federal service
 brought about by Respondent's unlawful conduct, and pay to him a sum
 equal to the amount he would have earned or received from the date of
 his separation to the effective date of the offer of reinstatement, less
 any amount earned through other employment during this period of time.
 
    WE WILL, consistent with law and regulation, make Richard Frontera
 whole for any monetary losses incurred as a result of Respondent's
 assignment of Richard Frontera to the United States Penitentiary,
 Lewisburg, Pennsylvania, and for which he has not otherwise been
 reimbursed.
                                       (Agency or 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, Region I, Federal Labor Relations Authority, whose address is:
  441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone
 number is:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 1-CA-40368
 
 UNITED STATES DEPARTMENT OF JUSTICE, 
 BUREAU OF PRISONS, WASHINGTON, D.C., AND 
 BUREAU OF PRISONS, FEDERAL CORRECTIONAL 
 INSTITUTION, RAY BROOK, NEW YORK
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 3882
    Charging Party
 
    William C. Owen, Esquire
    For the Respondent
 
    Richard Zaiger, Esquire
    Peter F. Dow, Esquire
    For the General Counsel
 
    Gay Snyder, Esquire
    For the Charging Party
 
    Before:  LOUIS SCALZO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
 "the Statute"), and the Rules and Regulations issued thereunder.
 
    The complaint alleged that since on or about March 1, 1984, and
 continuing to March 12, 1985, the date on which the complaint was
 issued, the United States Department of Justice, Bureau of Prisons,
 Washington, D.C.; and Bureau of Prisons, Federal Correctional
 Institution, Ray Brook, New York (Respondent), failed to comply with the
 provisions of 5 U.S.C. Section 7122(b) of the Statute, by refusing to
 implement a clarified arbitration award issued by Arbitrator Dale S.
 Beach on March 1, 1984 for the purpose of clarifying an earlier
 arbitration award issued by Arbitrator Beach on December 16, 1983, in
 Case No. 82K/24082.  The complaint further alleged that the conduct
 outlined violated Section 7116(a)(1), (5) and (8) of the Statute.  /3/
 
    The parties were represented by counsel during the hearing and were
 afforded full opportunity to be heard, adduced relevent evidence, and
 examine and cross-examine witnesses.  Based upon the entire record,
 including a stipulation of facts, exhibits, relevant evidence adduced at
 the hearing, /4/ and briefs filed by the parties, I make the following
 findings of fact, conclusions and recommendations.
 
                             Findings of Fact
 
    Richard Frontera, a Cook-Foreman at Respondent's Federal Correctional
 Institution, Ray Brook, New York (FCI, Ray Brook), was terminated on
 June 10, 1982, for intimidating and physically abusing a prisoner, and
 for failing to report a possible breach of prison security.  The
 American Federation of Government Employees, AFL-CIO, Local 3882
 (Union), grieved Frontera's termination to arbitration, and on December
 16, 1983, Arbitrator Dale S. Beach issued an award wherein he held that
 there was not just and sufficient cause for the adverse action taken.
 He reduced the penalty to a 60 calendar day suspension and ordered that
 "(w)ithin 10 calendar days of the receipt of this Award Mr. Frontera
 shall be reinstated to his regular job without the loss of any employee
 benefits." The award also provided for backpay to June 10, 1982, the
 date of discharge, less pay for the 60-day suspension, and less any
 possible unemployment compensation or wages received from other
 employment during the period of discharge.
 
    Upon receipt of the December 16th award, the Respondent determined
 that an appeal should not be filed.  It was also decided that Mr.
 Frontera would be returned to work in a location other than FCI, Ray
 Brook.  Respondent took no action to persuade the Office of Personnel
 Management (OPM) to perfect an appeal in accordance with the provisions
 of 5 U.S.C. Section 7121(f) and 7703(d) (G.C. Exh. No. 1(H), at page 3;
 Tr. 212, 213, 216).  /5/ If OPM became aware of the existence of the
 December 16th award for appeal purposes, the specific nature and date of
 such awareness was not made a part of the record.  There was no showing
 that OPM received a copy of the December 16th award, or that OPM was
 ever otherwise put on notice of its existence.
 
    Respondent surveyed available openings in Mr. Frontera's work
 classification and grade and determined initially that he should be
 assigned to work at the Federal Prison Camp (FPC), Big Spring, Texas.
 /6/ The Respondent's position was based upon the fact that a literal
 interpretation of the December 16th award did not preclude an immediate
 reassignment to another institution if the new position matched his
 prior job classification and pay level (Tr. 117-118).  /7/
 
    Mr. Frontera communicated with a representative of the Union who
 advised him to fight the transfer through the Union, and to communicate
 with his Congressman concerning the matter (Tr. 157-158).  A letter
 dated January 10, 1984 addressed to Mr. Frontera by Congressman David
 O'B. Martin disclosed the results of an unsuccessful effort to resolve
 the issue (G.C. Exh. No. 5).
 
    At a meeting with Respondent's representative on January 16, 1984,
 Mr. Frontera was advised that he was being reassigned to the FPC, Big
 Spring, Texas as of February 5, 1984, and that he should report there no
 later than 12:00 noon, on February 14, 1984 (Jt. Exh. Nos. 3 and 4).
 
    On January 27, 1984, Congressman David O'B. Martin again questioned
 the Respondent's refusal to put Mr. Frontera back to work at FCI, Ray
 Brook (Jt. Exh. No. 6).  In a letter dated February 1, 1984, the
 Respondent, through Norman Carlson, Director, Bureau of Prisons advised
 that in cases involving serious misconduct and mistreatment of inmates,
 it was Bureau policy "to reassign the employee to another facility in
 order to give him an opportunity for a fresh start among new co-workers
 and to lessen the possibility for reprisal against him by the inmate
 population." It was further noted that the reassignment of Mr. Frontera
 was not a disciplinary action, but merely an attempt to insure that Mr.
 Frontera would not be returned to a situation which would endanger him
 or the security of an institution (Jt. Exh. No. 7).
 
    On February 1, 1984, the Respondent informed Frontera that a decision
 had been made to cancel his transfer to FPC, Big Spring, Texas, and that
 instead he would be reassigned to the United States Penitentiary (USP),
 Lewisburg, Pennsylvania, effective February 5, 1984 (Jt. Exh. Nos. 8 and
 9).  He was ordered to report on February 7, 1984.  /8/
 
    In response to a Union request for an opportunity to discuss
 Respondent's refusal to return Frontera to his job at FCI, Ray Brook, a
 meeting was held on February 6, 1984.  Respondent took the position that
 it had a right to reassign Frontera under the circumstances, and further
 that there was nothing in the December 16th award which mandated his
 return to FCI, Ray Brook (Tr. 146-148).  At the meeting Ronald N.
 Cloutier, President of the Union was handed a copy of a letter dated
 February 6, 1984, signed by J.T. Hadden, Warden, FCI, Ray Brook.  The
 letter repeated the Respondent's position that reassignment was
 necessary to give Frontera a fresh start and "to lessen the possibility
 of any reprisal against him by the inmate population." He noted that the
 Respondent was "trying to insure that Mr. Frontera is not returned to a
 situation which would endanger him or jeopardize the orderly running and
 security of the institution." (G.C. Exh. No. 4).
 
    At this point in the case history Mr. Cloutier contacted Mr. George
 Girlando in the AFGE's Second District Office, New Brunswick, New Jersey
 to ascertain if the Union might petition for a clarification of
 Arbitrator Beach's December 16, 1982 award (Tr. 15).  As a result of
 this contact Mr. Girlando addressed a mailgram dated February 7, 1984 to
 Arbitrator Beach, and sought an interpretation of paragraph (3) of the
 award which ordered the Respondent to reinstate Mr. Frontera to his
 regular job without the loss of any employee benefits.  (Jt. Exh. Nos.
 11, 12 and R. Exh. No. 1).
 
    The Respondent's representative in the arbitration proceeding was
 clearly identified as Ronald Brown;  however, the mailgram was
 misdirected to one Raymond Brown at FCI, Ray Brook (Tr. 55).  Ronald
 Brown's testimony, and other testimony in the record reflects that the
 Respondent did not receive notice of the request for clarification (Tr.
 81-84, 109-111, 172-173.  /9/
 
    On February 15, 1984, the Respondent processed a number of documents
 or personnel actions concerning Mr. Frontera's reinstatement and return
 to duty (Jt. Exh. No. 17).  His separation of June 10, 1982 was
 cancelled.  He was suspended for a 60-day period in accordance with the
 December 16th award.  He was characterized on a personnel action as
 having been "returned to duty" at FCI, Ray Brook as of August 10, 1982,
 although he was never actually allowed to return to work at the Ray
 Brook facility.  As of February 26, 1984, he was reassigned from FCI,
 Ray Brook to the United States Penitentiary, Lewisburg, Pennsylvania for
 payroll purposes (Jt. Exh. No. 17).  Between February 5, 1984 and
 February 26, 1984 he was carried as an employee of FCI, Ray Brook,
 although actually reassigned to his new post in Lewisburg during this
 period (Tr. 176-177).
 
    On March 1, 1984, in response to the request for clarification, and
 without providing Respondent an opportunity to be heard, Arbitrator
 Beach issued a Clarification of Award, holding that Richard Frontera
 should be reinstated to his regular job as Cook-Foreman at FCI, Ray
 Brook without the loss of any employee benefits (Jt. Exh. No. 13).
 
    The Respondent did not request OPM to take the necessary steps to
 perfect an appeal to the United States Court of Appeals for the Federal
 Circuit in accordance with the provisions of 5 U.S.C. Section 7703(d)
 (G.C. Exh. No. 1(H) at page 3).  Instead, Respondent's representatives
 decided to refuse compliance, and to file exceptions to the award with
 the Authority (Tr. 118-119, 76-77).  /10/
 
    The clarified award was the subject of discussion between Mr. Owen,
 Respondent's Counsel and an OPM staff representative.  Mr. Owen apprised
 OPM that he had two theories on which to attack the clarified award (Tr.
 213), and inquired whether it would be wise to appeal to the Authority
 (Tr. 215).  He related that he received an affirmative reply from OPM
 (Tr. 215).  This telephone call would necessarily have had to occur
 between March 1, 1984, the date of issuance of the clarified award, and
 March 27, 1984, the date on which the Respondent filed exceptions with
 the Authority (Jt. Exh. No. 18).
 
    FPM Letter 711-160 dated July 13, 1981 requires federal agencies to
 supply OPM with two copies of all Section 7121(f) arbitration awards
 within five days of an agency's receipt of the award so as to enable OPM
 to exercise its statutory right to appeal in such cases.  It further
 requires agencies to notify OPM by telephone "as early as possible if
 (an) agency believes that OPM should seek court review . . . " FPM
 Bulletin 711-91(3) dated November 13, 1984, advises agencies to
 "promptly serve OPM a copy of arbitral awards in these cases to allow
 maximum time to assess their impact and to determine whether
 reconsideration and judicial review are warranted." This Bulletin notes
 that OPM "must rely on agencies for prompt service of troublesome
 decisions subject to judicial review within prescribed time limits."
 
    The telephone call to OPM acknowledged by Respondent's counsel was
 consistent with Respondent's obligation to phone OPM in cases wherein an
 agency has an interest in appealing a Section 7121(f) arbitration award.
  (FPM Letter 711-160 dated July 13, 1981).  Presumably, neither
 Respondent nor OPM was interested in taking the necessary steps to
 perfect an appeal to the Federal Circuit, as both the Respondent and OPM
 elected to take their chances with an appeal to the Authority, the wrong
 forum in this instance.  The reason for the OPM decision on this issue
 does not appear in the record;  however, the record does reflect that
 the Respondent's representatives labored or appeared to labor, under the
 erroneous assumption that the filing of exceptions was governed by
 Section 7122 of the Statute (Jt. Exh. Nos. 18 and 20).
 
    On June 29, 1984, the Authority dismissed the exceptions, /11/
 clearly noted that it had no jurisdiction to review the case, and
 referred the Respondent to review procedures set out in 5 U.S.C. Section
 7703.  In so doing the Authority stated:
 
          The matters described in Section 7121(f) of the Statute include
       those covered under 5 U.S.C. Section 7512 which applies to
       specified adverse actions, including removals and suspensions for
       more than 14 days.  Pursuant to Section 7121(f), review of an
       arbitration award relating to such matters must be obtained in
       accordance with 5 U.S.C. Section 7703, i.e., in the same manner
       and under the same conditions as judicial review of a final
       decision of the Merit Systems Protection Board.  /12/
 
    On July 11, 1984, the Respondent moved for reconsideration, and
 requested a stay of the Authority's June 29, 1984 order dismissing the
 Respondent's exceptions (Jt. Exh. No. 20).  /13/ On August 27, 1984,
 while the motion for reconsideration was pending before the Authority,
 the charge initiating this case was filed.  On December 11, 1984, the
 Respondent's motion for reconsideration was denied, thus upholding the
 Authority's earlier ruling that it had no jurisdiction in the matter
 (Jt. Exh. No. 23).
 
    Following the denial of the Respondent's motion for reconsideration,
 the Union again made a request that Mr. Frontera be reassigned to FCI,
 Ray Brook.  However, the Respondent declined on the ground that the
 Federal Bureau of Prisons had appropriately exercised its discretion to
 assign him to the USP, Lewisburg (Jt. Exh. No. 24, and G.C. Exh. No. 6).
 
    The assignment of Mr. Frontera to the USP in Lewisburg, Pennsylvania
 represented an economic burden for Mr. Frontera.  The record revealed
 that he and his adopted family had lived in Tupper Lake, New York, in
 the Ray Brook area since 1976, and that Lewisburg was nearly 400 miles
 away from his established home.  After commencing work in Lewisburg
 early in 1984, he had to return home approximately once a month to
 attend to family business.  Circumstances precluded his adopted family
 from relocating.  As a result he had to contribute to the support of his
 home in Tupper Lake, New York, while at the same time renting a room in
 Lewisburg.  These adverse circumstances ultimately led to economic and
 personal hardship, and to Mr. Frontera's resignation on March 2, 1985,
 due to such hardship (Jt. Exh. No. 25).
 
                        Discussion and Conclusions
 
    Prior to the hearing counsel representing the Respondent moved to
 dismiss the complaint on the ground that conduct alleged in the
 complaint as a basis for violation of Sections 7116(a)(1), (5) and (8)
 of the Statute, occurred more than six months before the filing of the
 charge.  It was argued that any unfair labor practices which might have
 occurred are time-barred by the provisions of Section 7118(a)(4) of the
 Statute (G.C. Exh. No. 1(N).  This motion was referred to the Office of
 Administrative Law Judges for disposition in accordance with the
 provisions of 5 C.F.R. Section 2423.22(b).  At the opening of the
 hearing record, counsel representing the Respondent also moved to
 discuss the complaint on the ground that the arbitration award herein
 falls within the purview of Section 7121(f) of the Statute.  It was
 argued that the Authority has no jurisdiction to order compliance with
 such awards (R. Exh. No. 1).  Decisions on these motions were reserved.
 /14/
 
    The motion to dismiss based upon the absence of Authority
 jurisdiction rests on the theory that Section 7122(b) relates entirely
 to arbitration awards which could have been, but were not, appealed to
 the Authority in accordance with the provisions of Section 7122(a) of
 the Statute.  /15/ Accordingly, it is argued that as a matter of law
 Section 7122(b) is inapplicable and that there can be no violation of
 7122(b) for refusing to take action required by an adverse action
 arbitration award appealable to the United States Court of Appeals for
 the Federal Circuit under the provisions of Section 7121(f).  /16/
 
    The argument rests on the premise that the Authority may enforce only
 those arbitration awards which it has been given express jurisdiction to
 review, and further that failure to comply with arbitration awards
 falling with the purview of Sections 7121(f) of the Statute may not be
 the subject of an unfair labor practice proceeding.  It is also
 contended that enforcement of adverse action arbitration awards may
 occur only through utilization of a compliance proceeding initiated
 under the provisions of 5 U.S.C. Section 1205 pertaining to the
 enforcement of Merit Systems Protection Board orders.
 
    Respondent's argument on this issue is not persuasive.  Section
 7121(f) of the Statute merely outlines the appeal route that must be
 pursued with respect to an arbitration award relating to matters covered
 under 5 U.S.C. Sections 4303 and 7512.  Section 7121(f) provisions
 placing the arbitrator in the place of the Merit Systems Protection
 Board are specifically limited to 5 U.S.C. Section 7703 (judicial review
 of decisions of the Merit Systems Protection Board).  Section 7121(f)
 does not include enforcement procedures under 5 U.S.C. Section 1205.
 Moreover, there is no indication that the latter section extends to
 arbitral awards.
 
    Although Section 7122(b) provides finality for arbitration decisions
 appealable to the Authority if timely exceptions are not filed with the
 Authority, it also specifically provides that "An agency shall take the
 actions required by an arbitrator's final award." There would be no
 logical reason for limiting the mandate reflected in this sentence to
 arbitration awards falling within Authority appellate jurisdiction, in
 light of the fact that Section 7121(f) provides a procedure for
 finalizing Section 7121(f) arbitration awards.
 
    Section 7122 provides a procedure for judicial review of arbitration
 awards falling within the purview of Authority jurisdiction and, by
 reason of the provisions of Section 7121(f), it also incorporates by
 reference a procedure (5 U.S.C. Section 7703) for review of adverse
 action arbitration awards by the United States Court of appeals for the
 Federal Circuit.  The quoted sentence mandating that agencies "shall
 take the actions required by an arbitrator's final award" refers to
 arbitration awards reviewed by the Authority, and to adverse action
 arbitration awards reviewable by the United States Court of Appeals for
 the Federal Circuit.  This interpretation operates to provide a
 consistent procedural approach designed to compel compliance with
 arbitration awards.  In either case, a failure to comply with the
 provisions of Section 7122(b), constitutes an unfair labor practice
 within the meaning of Section 7116(a)(8) of the Statute, and thus brings
 to bear upon such non-compliance, the full power of the Statute's
 enforcement mechanisms relating to unfair labor practices.  /17/
 
    The interpretation of the Statute set out is reflected in summary
 form in a memorandum dated October 18, 1984, addressed to the General
 Counsels of Executive Departments, Agencies, and Independent
 Establishments by Joseph Morris, General Counsel, Office of Personnel
 Management (G.C. Exh. No. 2).  Mr. Morris notes that in cases involving
 adverse action arbitration awards which are not reviewable by the
 Authority, the arbitrator cannot enforce the award, and "(r)efusal to
 comply provides grounds for an unfair labor practice charge." /18/ For
 the reasons outlined the motion to dismiss for want of jurisdiction is
 denied.
 
    The Respondent's motion to dismiss based upon an untimely filing of
 the charge depends upon an initial determination of the finality of the
 March 1, 1984 clarified award as the Authority has held that where there
 has been no compliance the timeliness of a charge based upon a failure
 to implement an arbitration award is determined from the date that the
 award becomes final and binding.  United States Air Force, Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, supra, at note
 15.  /19/ The Authority has also made it clear that the language of
 Section 7122(b) requires an agency to take actions required by an
 arbitrator's award only after the award has become final and binding.
 In the absence of a clear showing of finality there is no statutory
 obligation (under Section 7122(b)) to comply with the award.  U.S.
 Soldiers' and Airmen's Home, Washington, D.C., 15 FLRA No. 26 (1984), 15
 FLRA 139;  United States Air Force, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, supra.
 
    Because the removal action brought against Mr. Frontera arose as a
 disciplinary action under 5 U.S.C. Section 7512, Mr. Frontera had a
 choice, under Section 7121(e) of the Statute, to resolve his claims
 through utilization of the negotiated grievance procedure or the
 statutorily established Merit Systems Protection Board procedure set out
 in 5 U.S.C. Section 7701.  He elected to utilize the grievance procedure
 and pursued the matter through the arbitration phase.  As noted Section
 7121(f) and Section 7703 do not provide for direct agency appeal of an
 arbitrator's decision in such cases.  Only the Director of OPM may
 initiate an appeal.
 
    Section 7703(b)(1) of the Statute provides:
 
          (b)(1) Except as provided in paragraph (2) of this subsection,
       a petition to review a final decision of the Board shall be filed
       in the United States Court of Appeals for the Federal Circuit.
       Notwithstanding any other provision of law, any petition for
       review must be filed within 30 days after the date the petitioner
       receives notice of the final order or decision of the Board.
 
    The 30-day period referred to in Section 7703(b)(1) has been
 considered by the Federal Circuit, and it has been held that Section
 7703(d) first conditions OPM's appeal right upon OPM's prior
 intervention in the arbitration proceeding.  If OPM was not made a party
 to the arbitration, OPM must first intervene and request reconsideration
 of the arbitration award.  Devine v. Nutt, 718 F.2d 1048 (1983), rev'd
 sub nom. on other grounds Cornelius v. Nutt, 105 S. Ct. 2882 (1985);
 Divine v. Sutermeister, 724 F.2d 1558 (1983).  Devine v. Pastore, 732
 F.2d 213 (1984);  Devine v. Levin, 739 F.2d 1567 (1984).
 
    Section 7703 does not provide a specific time for OPM to intervene
 and request reconsideration of an arbitration award covered by Section
 7121(f) and Section 7703.  However, the Federal Circuit has held that
 the time for filing a request for reconsideration "runs from the date
 OPM receives notice of the decision of the MSPB or arbitrator, as the
 case may be." Devine v. Sutermeister, supra, at 1562, note 4.  This case
 makes it clear that the failure of OPM to take appropriate action within
 30 days of OPM's receipt of notice operates to extinguish OPM's right to
 request intervention and reconsideration in the arbitration proceeding
 and the right to appeal to the Federal Circuit as well.
 
    At a minimum, the record establishes that OPM received notice of the
 March 1, 1984 clarification award through Respondent's counsel, and that
 OPM thereafter took no action to intervene in the arbitration proceeding
 for the purpose of requesting reconsideration as a step toward appeal to
 the Federal Circuit.  A period of more than 30 days passed after OPM's
 receipt of notice thus resulting in the extinguishment of OPM's right to
 proceed further.  /20/
 
    Since the charge in this case was filed on August 27, 1984, it was
 well within six-months of the date on which the clarified award became
 final and binding, and within the six-month period of limitation
 prescribed in Section 7118(a)(4) of the Statute.  Accordingly,
 Respondent's motion to dismiss based upon Section 7118(a)(4) is denied.
 
    If the Respondent (through OPM) did in fact have a basis for an
 appeal to the Federal Circuit, it was lost by the passage of time
 consumed in the unfortunate choice of appeallate procedures.  It is
 entirely possible that Respondent's contentions, if brought to the
 attention of the Federal Circuit, would have produced a different
 result.  However, such issues are not litigable in this proceeding.
 /21/ The Authority has repeatedly held in a series of analogous cases,
 that any contention that an aribtrator's award is deficient because it
 is contrary to any law, rule or regulation must be made by invoking the
 procedures established by Congress.  /22/
 
    It is clear from the record that the Respondent did not comply with
 the March 1, 1984 clarified award after it became final and binding.
 The Respondent did not return Mr. Frontera to his regular duties at FCI,
 Ray Brook.  This was admitted by the Respondent.  The mere processing of
 documents to make it appear that Mr. Frontera had been fully reinstated
 was certainly not compliance with the March 1, 1984, arbitration award.
 Respondent's repudiation of the obligation to reinstate Mr. Frontera was
 total in nature, and was the direct cause of Mr. Frontera's resignation.
  It constitutes a clear violation of Section 7122(b) of the Statute.
 Accordingly, this conduct also constitutes an unfair labor practice
 within the meaning of Sections 7116(a)(1) and (8) of the Statute.  /23/
 
    Having found that the Respondent violated Sections 7116(a)(1) and (8)
 of the Statute, it is recommended that the Authority issue the following
 Order:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the United States Department of Justice, Bureau of Prisons,
 Washington, D.C., and Bureau of Prisons, Federal Correctional
 Institution, Ray Brook, New York, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to implement the March 1, 1981
       Clarification of Award issued in FMCS Case No. 82K/24082, by
       failing and refusing to reinstate Richard Frontera to his regular
       job as a Cook-Foreman at the Federal Correctional Institution, Ray
       Brook, New York.
 
          (b) In any like or related manner interfering with, restraining
       or coercing employees in the exercise of their rights assured by
       the Federal Service Labor-Management Relations 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 the March 1, 1984 Clarification of Award issued
       in FMCS Case No. 82K/24082, by offering to reinstate Richard
       Frontera to his regular job as a Cook-Foreman at the Federal
       Correctional Institution, Ray Brook, New York, without prejudice
       to his seniority or other rights or privileges.
 
          (b) Make Richard Frontera whole, consistent with applicable
       laws and regulations, for any loss of pay he may have suffered by
       reason of his separation from Federal service brought about by
       Respondent's unlawful conduct, and pay to him a sum equal to the
       amount he would have earned or received from the date of his
       separation to the effective date of the offer of reinstatement,
       less any amount earned through other employment during this period
       of time.
 
          (c) Consistent with law and regulation, make Richard Frontera
       whole for any monetary losses incurred as a result of Respondent's
       assignment of Richard Frontera to the United States Penitenitary,
       Lewisburg, Pennsylvania, and for which he has not otherwise been
       reimbursed.
 
          (d) Post at its Washington, D.C. and Ray Brook, New York
       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 Director, Bureau of Prisons,
       Washington, D.C., 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.
 
          (e) 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.
 
                                       /s/ Louis Scalzo
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
    Dated:  November 15, 1985
    Washington, D.C.
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In view of this conclusion, the Authority finds it unnecessary to
 pass upon whether the Respondent also violated section 7116(a)(5) of the
 Statute and denies the General Counsel's exception to the Judge's
 Decision in this regard.
 
    (2) The Respondent, subsequent to the filing of its exceptions, filed
 several requests that the Authority take notice of various decisions of
 the Merit Systems Protection Board and the Federal Courts.  These
 requests have in each instance been vigorously opposed by the General
 Counsel.  While the Authority does not wish to discourage parties from
 bringing to our attention relevant case law, citations to authority
 which are cumulative or which seek only to supplement arguments already
 made do not enhance the record.  To the extent that the Respondent's
 requests raise anything new, they have been considered.
 
    (3) Counsel representing the General Counsel based the Section
 7116(a)(8) violation upon alleged failure to comply with the provisions
 of Section 7122(b) of the Statute.  However, in a post-hearing motion
 counsel representing the General Counsel moved to amend paragraph 17 of
 the complaint so as to include alleged failure to comply with the
 provisions of "5 U.S.C. 7121(f) and/or 5 U.S.C. 7121(b)(3)(C)," as a
 basis for the Section 7116(a)(8) violation.  The motion also requested
 minor inconsequential amendments relating to Section 17(a) of the
 complaint.  In this regard, it was requested that the phrase, "Since on
 or about March 1, 1984, and continuing to date, Respondent by its agent
 and representatives have failed and continue to fail to reinstate
 Richard Frontera . . . " be modified to allege, "Since on or about March
 1, 1984, and continuing to date Respondent by its agents and
 representatives has failed and continues to fail to reinstate Richard
 Frontera . . . "
 
    Section 2423.12(d) of the Regulations, 5 C.F.R. 2423.12(d), provides
 in part:  "A complaint may be amended upon such terms as may be deemed
 just . . . at the hearing and until the case has been transmitted to the
 Authority pursuant to Section 2423.26, upon motion by the Administrative
 Law Judge designated to conduct the hearing . . . "
 
    Counsel representing the Respondent interposed objection to the
 motion to amend the complaint.  Since the record does not indicate that
 Respondent was given specific notice in the complaint or at the hearing,
 that the General Counsel was relying upon Section 7121(f) or Section
 7121(b)(3)(C) as basis for a Section 7116(a)(8) violation, and since the
 parties did not otherwise litigate issues relating to this prosecutive
 theory, it is determined that the motion to include these statutory
 provisions in Paragraph 17 of the Complaint must be denied.  Federal
 Mediation and Conciliation Service, 9 FLRA No. 31 (1982), 9 FLRA 199;
 Social Security Administration, 16 FLRA No. 148 (1984), 16 FLRA 1135.
 However, the minor changes in terminology proposed in the quoted portion
 of Section 17(a) of the complaint do not alter the substantive meaning
 of the complaint.  The motion is granted insofar as it relates to these
 changes.
 
    (4) Counsel representing the General Counsel moved to correct errors
 in the hearing transcript.  Under Authority reflected in 5 C.F.R.
 Section 2423.19(r), the proposed corrections are approved.
 
    (5) Section 7121(f) provides:  "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 . . . "
 
    Since October 1, 1982, the United States Court of Appeals for the
 Federal Circuit has had, under the provisions of the Federal Courts
 Improvement Act of 1982, 96 Stat. 25, exclusive jurisdiction to hear
 appeals from final orders or final decisions of the Merit Systems
 Protection Board.  Section 7703 was amended by the Act to reflect this
 jurisdictional change.
 
    Section 7703(d) provides:  "The Director of the Office of Personnel
 Management may obtain review of any final order or decision of the Board
 by filing a petition for judicial review in the United States Court of
 Appeals for the Federal Circuit if the Director determines, in his
 discretion, that the Board erred in interpreting a civil service law,
 rule, or regulation affecting personnel management and that the Board's
 decision will have a substantial impact on a civil service law, rule,
 regulation, or policy directive.  If the Director did not intervene in a
 matter before the Board, the Director may not petition for review of a
 Board decision under this section unless the Director first petitions
 the Board for a reconsideration of its decision, and such petition is
 denied . . .  The granting of the petition for judicial review shall be
 at the discretion of the Court of Appeals." Section 7703 makes no
 provision for direct agency appeal to the Federal Circuit.
 
    (6) On January 9, 1984, 24 days after the award, Mr. Frontera learned
 of Respondent's intent to relocate him and determined that he would
 oppose a transfer (Tr. 156-158).  The fact that the parties faced
 elements of uncertainty in the meaning to be accorded the December 16,
 1982 award was acknowledged by counsel representing the General Counsel
 (Tr. 36-37, 143-144).
 
    (7) The record reflects no issue concerning the job classification or
 grade level assigned in connection with his reinstatement to federal
 employment (Tr. 190-192).
 
    (8) Frontera did report for duty at Lewisburg as ordered (Tr. 160,
 Jt. Exh. No. 10).
 
    (9) On July 26, 1985, after the close of the hearing, and prior to
 the filing of post-hearing briefs, counsel representing the Respondent
 requested that official notice be taken of portions of the "U.S. Postal
 Service Handbook M-79, Mailgram Operating Procedures." The request was
 designed to provide additional support for a factual finding that the
 Union's request for clarification was not in fact received by
 Respondent's representatives.
 
    During the hearing the Respondent had ample opportunity to develop
 the record relating to this factual issue, but did not introduce
 evidence relating to provisions of the Handbook.  The record reflects no
 explanation concerning the specific origin or date of this publication,
 nor any showing that the provisions of the Handbook were applicable to
 the mailgram sent to the arbitrator by the Union.  Furthermore, the
 record reflects no reason to justify the Respondent's failure to
 introduce this material at the hearing.  Admission at this late date
 would necessarily operate to deprive the General Counsel and the
 Charging Party of an opportunity to object or to interpose rebuttal.
 For the reasons outlined the request is denied.
 
    Counsel representing the Respondent also requested that official
 notice be taken of the Regional Director's dismissal letter, and the
 General Counsel's affirmance of dismissal in Case No. 3-CA-40249.  Also
 included was a request that an arbitrator's clarification issued in Case
 No. 3-CA-40249, be officially noted in conjunction with the dismissal
 letters issued in Case No. 3-CA-40249.  These requests are granted
 inasmuch as the documents may be received for appropriate consideration
 in resolving questions of law, as distinguished from questions of fact.
 However, it is noted that principles expressed in these documents have
 no precedential value with respect to legal issues posed in this case.
 
    (10) The Respondent admits that the award as clarified has not been
 implemented by the Respondent (Jt. Exh. No. 26;  Tr. 75-76, 80-81).
 
    (11) The Respondent argued that the March 1, 1984 clarified award
 interfered with management's right to assign employees, that it
 interfered with management's right to establish and carry out internal
 security practices, and that the arbitrator exceeded his authority in
 issuing the clarified award.
 
    (12) 15 FLRA No. 38 (1984), 15 FLRA 204.
 
    (13) The motion for reconsideration was amended on July 16, 1984 (Jt.
 Exh. No. 21).
 
    (14) A third motion to dismiss made by Respondent's counsel at the
 opening of the hearing rested on the theory that the complaint failed to
 allege an unfair labor practice within the meaning of the Statute.  The
 rationale underlying this motion rests on the premise that Mr. Frontera
 could not, in the Respondent's judgment, be entitled to reinstatement to
 the position he formerly held at FCI, Ray Brook in the absence of a new
 unfair labor practice charge alleging that his resignation from USP,
 Lewisburg was coerced (Tr. 9-10).  Inasmuch as this motion is vague and
 unclear at best, it is denied.  Moreover, the issue of whether or not a
 particular remedy would be appropriate in this case would have no
 bearing on the question of whether the complaint reflects compliance
 with the provisions of 5 C.F.R. Section 2423.12(b).
 
    (15) Section 7122(b) requires that "(a)n agency shall take the
 actions required by an arbitrator's final award . . . "
 
    (16) The post-hearing brief filed on behalf of the General Counsel
 notes that this issue is currently before the Authority in U.S. Army,
 Adjutant General Publications Center, St. Louis, Missouri, Case No.
 7-CA-40064, a case stipulated directly to the Authority (G.C. Brief at
 page 6).  See "Judicial Review of Adverse Action Arbitration Awards,"
 Federal Labor Relations Reporter (Highlights), December, 1983, 83 FLRR
 No. 22;  and "Adverse Action Arbitration in the Federal Sector:  A
 Streamlining of the Appellate Procedures?", Federal Labor Relations
 Reporter (Highlights), January 1984, 83 FLRR No. 24, for discussion of
 procedural problems posed by Section 7121(f) arbitration awards.
 
    (17) Respondent argues that should the Authority seek enforcement of
 an order to comply with an arbitral award, it would have to petition a
 Court of Appeals other than the Federal Circuit.  However, there is no
 statutory or other inconsistency merely because the Federal Circuit has
 appellate jurisdiction under Section 7703, while enforcement under
 Section 7123 of the Statute would involve another Court.  The Federal
 Circuit would have jurisdiction to review the arbitrator's findings.
 Neither the Authority nor Courts of Appeal reviewing Authority unfair
 labor practice decisions would be reviewing or relitigating underlying
 arbitration awards involved in unfair labor practice proceedings
 designed to enforce such awards.  United States Air Force, Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA No. 27
 (1984), 15 FLRA 151, aff'd sub nom. Dept. of the Air Force, et al. v.
 FLRA, No. 84-3695 (6th Cir., Oct. 25, 1985);  Department of Defense,
 Department of the Navy, United States Marine Corps, United States Marine
 Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137 (1984),
 15 FLRA 686;  Veterans Administration Medical Center, Phoenix, Arizona,
 15 FLRA No. 138 (1984), 15 FLRA 706;  Department of Health and Human
 Services, Region II, 15 FLRA No. 139 (1984), 15 FLRA 710;  Department of
 Justice, U.S. Immigration and Naturalization Service, Washington, D.C.,
 16 FLRA No. 118 (1984), 16 FLRA 840;  Department of the Navy, Naval
 Submarine Base, New London, Connecticut, 19 FLRA No. 31 (1985), 19 FLRA
 250.
 
    Given the different functions of the Federal Circuit under Section
 7703 and other Circuits under Section 7123 of the Statute, Respondent's
 concern with conformity of court decisions is misplaced.
 
    The fact that Mr. Frontera theoretically might conceivably have other
 possible enforcement procedures available to him would not necessarily
 operate to divest the Authority of unfair labor practice jurisdiction.
 The possible existence of an alternative procedure, without more, does
 not mean that the unfair labor practice procedure is unavailable to
 compel compliance with final and binding Section 7121(f) arbitration
 awards.
 
    (18) The memorandum was designed for use by agencies "f