23:0304(38)CA - HHS, SSA, Field Operations, New York Region and AFGE Local 2369 -- 1986 FLRAdec CA



[ v23 p304 ]
23:0304(38)CA
The decision of the Authority follows:


 23 FLRA No. 38
 
 U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
 SOCIAL SECURITY ADMINISTRATION, FIELD
 OPERATIONS, NEW YORK REGION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2369
 Charging Party
 
                                            Case No. 2-CA-40376
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the Respondent to the attached Decision of the Administrative
 Law Judge.  The General Counsel filed an opposition to the exceptions.
 The issue iw whether the Respondent, by basing disciplinary action
 against an employee in part upon an earlier written reprimand, failed to
 comply with an arbitrator's award, as required by section 7122(b) of the
 Statute, /1/ and therefore has violated section 7116(a)(1) and (8) of
 the Statute.  /2/
 
                  II.  Background and Judge's Conclusion
 
    On August 10, 1982, employee Derrick Thomas was reprimanded for
 improper conduct.  The reprimand was grieved and processed to
 arbitration.  While the Arbitrator's decision was pending, the
 Respondent proposed to and did suspend Thomas for a series of events
 that occurred subsequent to the August 10, 1982 reprimand.  The
 suspension, characterized as "progressive discipline," was admittedly
 based in part on the reprimand.  On January 20, 1984, the Arbitrator
 issued an award which provided that Thomas' reprimand was not for just
 cause.  He ordered that the reprimand be expunged from Thomas' personnel
 file, and that the reprimand "not be used against (the) grievant in any
 other proceeding." Explaining his award, the Arbitrator stated:  "The
 reprimand has apparently already been removed from grievant's . . .
 (f)ile . . . and the Official Personnel Folder by passage of time;
 however, the matter is not mooted thereby inasmuch as there was evidence
 that grievant had this reprimand used against him in another subsequent
 disciplinary proceeding to demonstrate progressive discipline. . . .  I
 will award . . . that it is not only to be expunged from grievant's
 record but may not be used against him in any fashion." No exceptions to
 the award were filed with the Authority.  Following unsuccessful
 attempts by the Union to persuade the Respondent to rescind the
 suspension of Thomas in light of the Arbitrator's award, the charge that
 led to this complaint was filed.
 
    The Judge, noting that the Arbitrator's award became final and
 binding when no exceptions were filed, found that the Respondent
 violated section 7116(a)(1) and (8) of the Statute by failing to comply
 with the award.  The Judge found that all references to an August 5,
 1982 incident involved in Thomas' August 10, 1982 reprimand had been
 expunged from Thomas' personnel file, and that the only issue is whether
 the Arbitrator's award requires the Respondent to rescind Thomas'
 January 17, 1983 suspension.  He further found that one of the admitted
 reasons relied upon for Thomas' suspension was the reprimand, and that
 Thomas would not have been suspended but for that reliance.  Citing U.S.
 Army Health Clinic, Fort Ritchie, Maryland, 9 FLRA 935 (1982), the Judge
 ordered the Respondent to comply with the Arbitrator's award by removing
 all references to the August 5, 1982 incident from Thomas' personnel
 file and from all formal disciplinary actions thereafter taken by the
 Respondent against Thomas.  The Judge also ordered the Respondent to
 revise such actions to the extent required by law and regulation, and to
 rescind the January 17, 1983 suspension.
 
                      III.  Positions of the Parties
 
    In its exceptions, the Respondent argues that the Judge erred because
 the Respondent had removed from Thomas' personnel file all references to
 the August 5, 1982 incident and had thus complied with the Arbitrator's
 award.  As the suspension was based also on other reasons, it argues
 that it did not violate the Arbitrator's award.  Further, the Respondent
 argues that the Judge's reliance on Fort Ritchie is misplaced, as in
 that case rescission was not ordered.  Finally, the Respondent contends
 that the Judge's recommended Order is "vague, incomplete, and fatally
 deficient" because it orders rescission without back pay.  In its
 opposition to the exceptions, the General Counsel argues in support of
 the Judge's findings and argues that back pay is not only lawful, but is
 inherent in and thus required by the Judge's recommended order to
 rescind the suspension.
 
                               IV.  Analysis
 
    The Arbitrator's award states that Thomas' reprimand " . . . may not
 be used against grievant in any other proceeding" and " . . . it may not
 be used against him in any fashion." The Respondent acknowledges that
 the reprimand was one of the reasons for the suspension in question.  We
 thus agree with the Judge that the Respondent unlawfully failed to honor
 the Arbitrator's award and thereby violated section 7116(a)(1) and (8)
 of the Statute.  We do not find, however, that compliance with the award
 requires the Respondent to rescind Thomas' suspension.  Rather, we find
 that, as the Arbitrator's award requires that the reprimand not be used
 against Thomas in any other proceeding, the Respondent must, in order to
 comply with that award, take the following action.  The Respondent must
 remove all references to the August 5, 1982 reprimand incident in any
 disciplinary action taken against Thomas, including the January 17, 1983
 notice of suspension.  Further, the January 17, 1983 suspension itself
 must be reconsidered, having first removed all reference to or reliance
 on the reprimand.  If, upon such reconsideration, the Respondent
 concludes that the suspension should stand despite the "progressive
 discipline" reference in Thomas' suspension notice and the requirements
 of the parties' negotiated agreement, law and/or regulation, it may
 reaffirm the suspension.  See Fort Ritchie.  We shall thus modify the
 Judge's Order accordingly.
 
                              V.  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 affirms those rulings.  The Authority has considered the
 Judge's Decision, the exceptions to that Decision, the opposition to the
 exceptions, the positions of the parties, and the entire record, and
 adopts the Judge's findings, conclusions, and recommended Order as
 modified.  /3/ We conclude that the Respondent, by basing disciplinary
 action against employee Derrick Thomas in part upon an earlier written
 reprimand which the Arbitrator had ordered be removed from the
 employee's record and not be used against him in any other proceeding,
 failed to comply with the Arbitrator's award, and that such action
 constituted 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 Federal
 Service Labor-Management Relations Statute, it is hereby ordered that
 the U.S. Department of Health and Human Services, Social Security
 Administration, Field Operations, New York Region shall:
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to comply with the January 20, 1984 final
 award of Arbitrator Jonas Aarons.
 
    (b) Relying on the August 5, 1982 incident involving Derrick Thomas
 as a basis for imposing progressively severer penalties for other
 offenses in formal disciplinary actions.
 
    (c) 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 January 20, 1984 final award of Arbitrator Jonas
 Aarons.
 
    (b) Remove all references to the August 5, 1982 incident that led to
 the reprimand of Derrick Thomas from his personnel file and from all
 formal disciplinary actions taken against him, including the January 17,
 1983 notice of proposed suspension;  reconsider the January 17, 1983
 suspension, having first removed all reference to or reliance on the
 reprimand;  and take appropriate action as required by the parties'
 negotiated agreement, by law and/or regulation.
 
    (c) Post at its facilities throughout the Respondent's New York
 Region 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 a responsible official of the Respondent, and shall
 be posted and maintained for 60 consecutive days thereafter, in
 conspicuous places, including all bulletin boards and other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken to ensure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply.
 
    Issued, Washington, D.C., August 19, 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 or refuse to comply with the January 20, 1984 final
 award of Arbitrator Jonas Aarons.
 
    WE WILL NOT rely on the August 5, 1982 incident involving Derrick
 Thomas as a basis for imposing progressively severer penalties for other
 offenses in formal disciplinary actions.
 
    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 January 20, 1984 final award of Arbitrator
 Jonas Aarons.
 
    WE WILL remove all references to the August 5, 1982 incident that led
 to the reprimand of Derrick Thomas from his personnel file and from all
 formal disciplinary actions taken against him, including the January 17,
 1983 notice of proposed suspension;  reconsider the January 17, 1983
 suspension, having first removed all reference to or reliance on the
 reprimand;  and take appropriate action as required by the parties'
 negotiated agreement, by law and/or regulation.
                                       . . . (Agency or Activity
 
    Dated:  . . .  By:  . . . (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region II, Federal Labor Relations Authority, whose address
 is:  26 Federal Plaza, Room 3700, New York, New York 10278, and whose
 telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 2-CA-40376
 
    U.S. DEPARTMENT OF HEALTH AND
    HUMAN SERVICES, SOCIAL SECURITY
    ADMINISTRATION, FIELD OPERATIONS,
    NEW YORK REGION
        Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, AFL-CIO, LOCAL 2369
         Charging Party
 
    Thomqs H. Gabriel, Esquire
    For the Respondent
 
    Joseph Calafut
    For the Charging Party
 
    Allan W. Stadtmauer, Esquire
    For the General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101 et seq., 92 Stat. 1191 (hereinafter referred to as the
 Statute) and the Rules and Regulations of the Federal Labor Relations
 Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
 
    An unfair labor practice charge was filed on June 15, 1984, and
 amended on July 31, 1984, by the American Federation of Government
 Employees, AFL-CIO, Local 2369, hereinafter called AFGE Local 2369, and
 the Charging Party, alleging that the U.S. Department of Health and
 Human Services, Social Security Administration, Field Operations, New
 York Region, herein called Respondent, violated the Statute.  Based upon
 the foregoing, on July 27, 1984 the General Counsel of the FLRA, by the
 Regional Director of Region II, issued a Complaint and Notice of Hearing
 alleging that Respondent violated Section 7116(a)(1) and (8) of the
 Statute by failing to comply with an arbitrator's award.  Respondent
 filed an Answer denying that it had violated the Statute.
 
    A hearing was conducted before the undersigned in New York, New York.
  Respondent, AFGE Local 2369 and General Counsel for the FLRA were
 represented and afforded full opportunity to be heard, to examine and
 cross-examine witnesses, to introduce evidence and to argue orally.  The
 parties entered into extensive stipulations of fact.  Post hearing
 briefs have been filed and have been considered.
 
    Based upon the entire record in this matter and from my evaluation of
 the evidence, I make the following:
 
                             Findings of Fact
 
    At all times material to the matter, the American Federation of
 Government Employees, AFL-CIO, (AFGE) has been the certified exclusive
 representative of a consolidated nationwide unit of certain employees of
 Respondent, including all employees employed in the District and Branch
 Offices of the Social Security Administration in the states of New York
 and New Jersey, excluding all management personnel, professional
 employees, federal employees engaged in personnel work in other than a
 purely clerical capacity, guards and supervisors.  AFGE has delegated to
 the National Council of SSA Field Operations Locals (Council) the
 Authority to act as its representative for the purposes of collective
 bargaining for certain of Respondent's employees at its Jersey City
 Teleservice Center, New Jersey and the Respondent has recognized the
 Council's delegation.  During all times material herein, AFGE Local 2369
 has acted as agent for the Council for the purposes of collective
 bargaining for the employees, among others, at Respondent's Jersey City
 Teleservice Center, New Jersey and Respondent has recognized this.
 Labor-management relations between AFGE and the Respondent have been and
 still are governed by a National Agreement which became effective on
 June 11, 1984.
 
    On or about August 10, 1982, Respondent gave Derrick Thomas, a unit
 employee and an on-site union representative in the Jersey City
 Teleservice Center, a written reprimand for improper conduct alleged to
 have occurred on August 5, 1982 at his work site.  On or about August
 25, 1982 AFGE Local 2369 filed a grievance on Thomas' behalf regarding
 the August 10th reprimand, and this grievance was processed to
 arbitration pursuant to the parties' negotiated grievance procedure.
 The arbitration was ultimately heard on December 27, 1983.
 
    By letter dated November 24, 1982, and while the arbitrator's
 decision was still pending on the August 10th reprimand, Respondent
 issued a proposal to suspend Thomas for a series of events which
 occurred prior thereto.  The August 10th reprimand formed one of the
 bases for the proposed suspension which was characterized by Respondent
 as "progressive discipline." This procedure conformed with the parties'
 negotiated agreement.  Ultimately, by letter dated January 17, 1983,
 Respondent suspended Thomas for two (2) days on February 8 and 9, 1983.
 On March 24, 1983, while his arbitration on the August 10th reprimand
 was still pending, Thomas chose to file an Equal Employment Opportunity
 (EEO) complaint with the Respondent concerning his suspension;  he was
 represented by Charging Party.  /4/ The EEO Complaint was processed
 within Respondent and was dismissed on January 26, 1984.  The issue of
 Thomas' suspension was also brought to the attention of the Federal
 Labor Relations Authority by a charge filed in Case No. 2-CA-30260,
 alleging violations of Sections 7116(a)(2), (4), and (8) of the Statute.
  The charge was dismissed on the basis that the suspension had nothing
 to do with Thomas' function as a union representative.
 
    On or about January 20, 1984, pursuant to the parties' negotiated
 grievance and arbitration procedure, Arbitrator Jonas Aarons issued an
 arbitration award in FMCS Case No. 83K/10557 relating to Thomas' August
 10th written reprimand.  The award provided:
 
          There was not just cause for the reprimand issued to grievant
       on August 10, 1982, and such reprimand shall be removed from
       grievant's file, expunged completely, and may not be used against
       grievant in any other proceeding.
 
    In the penultimate paragraph of the opinion, which preceded the
 award, the arbitrator set forth the reasons for fashioning the award as
 he did.  He stated:
 
          The reprimand has apparently been removed from grievant's SF-7B
       Extension File and the official Personnel Folder by the passage of
       time;  however, the matter is not mooted thereby inasmuch as there
       was evidence that grievant had this reprimand used against him in
       another subsequent disciplinary proceeding to demonstrate
       progressive discipline.  So that I will award hereinafter
       regarding the reprimand involved here that it is not only to be
       expunged from grievant's record but may not be used against him in
       any fashion.
 
    The only disciplinary action taken against Thomas subsequent to the
 August 10, 1982 reprimand was his proposed suspension of November 24,
 1982, effectuated January 17, 1983.  There have been no other
 disciplinary actions, at all, since November 24, 1982 proposed or taken.
 
    By letter dated January 24, 1984, shortly after Arbitrator Aarons
 issued his decision, AFGE Local 2369 requested that Respondent implement
 the award by, among other things, withdrawing its January 17, 1983
 decision to suspend Thomas.  By letter dated February 2, 1984,
 Respondent by its agent, Alex W. Bussey, SSA Assistant Regional
 Commissioner for Field Operations, declined to accede to the request to
 set aside the 2-day suspension.  This letter states that there were
 numerous incidents to justify Thomas' January 13th suspension but does
 not enumerate what the incidents were.
 
    On or about February 20, 1984, the arbitrator's award became final
 and binding inasmuch as no exceptions had been filed by Respondent.  On
 February 28, 1984, the AFGE local 2369 filed an unfair labor practice
 charge in Case No. 2-CA-40234.  This charge, which alleged conduct
 similar to the conduct in this matter, was resolved on May 7, 1984, by
 means of a non-FLRA settlement which provided, inter alia, that "the
 reprimand received by Derrick Thomas on August 10, 1982 was overturned
 at the arbitration and will not be used by the Agency in any way to
 justify Mr. Thomas' suspension."
 
    On June 12, 1984, AFGE Local 2369 presented Case No. 021-084-X-0163
 to the Equal Employment Opportunity Commission (EEOC) on behalf of
 Thomas.  It was an appeal of Respondent's unfavorable EEO decision
 regarding his 2-day suspension.  The hearing opened and closed on the
 same day and written closing arguments and/or statements were made by
 AFGE Local 2369 and Respondent on June 28, 1984 and July 6, 1984
 respectively.  During the course of the EEO hearing, the Respondent
 elicited testimony from its own witness testified that the suspension
 was not an EEO matter but rather was based, in part, upon Thomas' August
 10, 1982 written reprimand and reflected the application of "progressive
 discipline." In its Closing Statement, dated July 6, 1984, Respondent
 remarked, inter alia, "We are certainly not using this matter against
 Mr. Thomas in these proceedings but merely are articulating our sound
 reasoning in arriving at the decision to suspend.  At the time in
 question we were administering progressive discipline, pure and simple."
 
    At all times since the arbitrator's award was issued on January 20,
 1984 and became final and binding on February 20, 1984, the January 17,
 1983 suspension of Derrick Thomas has not been reversed and continues to
 remain in Thomas' permanent personnel record.
 
                        Discussion and Conclusions
 
    Section 7122(a) of the Statute provides that exceptions to an
 arbitrator's award may be filed by either party to the arbitration.
 Section 7122(b) provides that "(1) if no exception . . . is filed under
 subsection (a) . . . during the 30 day period beginning on the dated of
 such award, the award shall be final and binding." Section 7122(b)
 provides that an agency must take the actions required by an
 arbitrator's award once that award has become final and binding, and
 defines a final and binding arbitrator's award as one to which no
 exceptions have been filed during the 30 day period following the
 service date of such award.  Accordingly, where no timely exceptions to
 an arbitrator's award have been filed under Section 7122(a) of the
 Statute, an agency's subsequent failure or refusal to implement the
 award has been found to constitute a violation of Section 7116(a)(1) and
 (8) of the Statute.  U.S. Soldiers' and Airmen's Home, Washington, D.C.,
 15 FLRA No. 26 (1984).  See also U.S. Army Health Clinic, Fort Ritchie,
 Maryland, 9 FLRA 935 (1982);  United States Marshals Service, 13 FLRA
 351 (1983).
 
    Respondent, not having filed exceptions to the arbitrator's award was
 obliged on or about February 20, 1984, to comply with the award.  To the
 extent the award required that all references to Thomas' reprimand be
 removed and expunged from Thomas' files and records, the award has been
 complied with.  The sole issue remaining is whether the award requires
 Respondent to rescind Thomas' suspension.  The arbitrator, in finding
 the reprimand was not justified, noted, in fashioning a remedy, that the
 matter was not moot because there was evidence that the grievant had the
 reprimand used against him in another subsequent disciplinary proceeding
 to demonstrate progressive discipline.  Accordingly, the arbitrator
 stated that the reprimand must not only be "expunged from grievant's
 record but may not be used against him in any fashion." Since the only
 discipline Thomas received subsequent to the reprimand was the
 suspension, this must have been the subject of the arbitrator's
 reference.
 
    I conclude that the case is controlled by the FLRA's decision in U.S.
 Army Health Clinic, Fort Ritchie, Maryland, 9 FLRA No. 935 (1982) where
 in almost an identical situation the FLRA concluded that such an award
 by an arbitrator /3/ to be meaningful did require the recision of the
 suspension.  It is clear, in the subject case that Respondent relied
 upon Thomas' reprimand in deciding to suspend him.  It was part of the
 "progressive discipline." Respondent confirmed this in its testimony
 before in the EEO hearing.  Thus the arbitrator's award clearly
 required, in the subject case, the recision of the suspension.
 
    Bussey's response that Thomas even absent the reprimand, because
 Thomas had engaged in "numerous incidents of insubordination" is totally
 unsupported.  I conclude this letter does not, in the absence of any
 evidence of misconduct by Thomas, other than the reprimand incident and
 the incident that immediately precipitated the suspension, rebut the
 fact that Thomas suspension was based in part upon the reprimand and,
 absent the reprimand, because of its principal of "progressive
 discipline," Thomas would not have been suspended.  U.S. Army Health
 Clinic, Fort Ritchie, Maryland, supra.
 
    Accordingly, I conclude Respondent violated Section 7116(a)(1) and
 (8) of the Statute by failing to comply with the Arbitrator's award.
 
    Based on the foregoing 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 Statute, it is
 hereby ordered that the U.S. Department of Health shall:
 
    1.  Cease and desist from:
 
          (a) Failing or refusing to comply with the January 20, 1984
       final award of Arbitrator Jonas Aaron or with any arbitrator's
       final award issued pursuant to the Federal Service
       Labor-Management Relations Statute.
 
          (b) Relying on August 5, 1982 incident involving Derrick Thomas
       as the basis for imposing progressively severer penalties for
       other offenses in formal disciplinary actions.
 
          (c) In any like or related manner failing or refusing to comply
       with any provision of the Federal Service Labor-Management
       Relations Statute.
 
          (d) In any like or related manner interfering with,
       restraining, or coercing employees for the exercise of any right
       under the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Comply with the January 20, 1984 final award of Arbitrator
       Jonas Aaron and any other arbitrator's final award issued pursuant
       to the Federal Service Labor-Management Relations Statute.
 
          (b) Revoke, rescind, and remove all references to the August 5,
       1982 incident involving Derrick Thomas personnel file and from all
       formal disciplinary actions taken against Derrick Thomas including
       the January 17, 1983 notice of proposed suspension and revise such
       actions accordingly to the extent required by law and regulations,
       including rescinding the January 17, 1983 suspension.
 
          (c) Post at its Jersey City Teleservice Center 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 a responsible official of U.S. Department
       of Health and Human Services, Social Security Administration,
       Field Operations, New York Region, and shall be posted and
       maintained by him for 60 consecutive days thereafter, in
       conspicuous places, including all bulletin boards and other places
       were notices to employees are customarily posted.  The Official
       shall take reasonable steps to insure that such Notices are not
       altered, defaced, or covered by any other material.
 
                                       /s/ Samuel A. Chaitovitz
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judges
 
    Dated:  September 12, 1985
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) Section 7122(b) provides:
 
               Section 7122.  Exceptions to arbitral awards
 
          (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).
 
    (2) Section 7116(a)(1) and (8) provides:
 
                   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;
 
                       . . . . . . .
 
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter(.)
 
    (3) Paragraphs 1(a), 1(c) and 2(a) of the Judge's recommended Order
 also have been modified because we find portions of those paragraphs to
 be unnecessarily broad;  they extend well beyond the circumstances of
 this case.
 
    (4) Article 18, Section 5, paragraph B, of the agreement, pertaining
 to Equal Employment Opportunity, provides as follows:
 
          An employee has the option of filing a complaint under the
       negotiated Grievance Procedure (Article 24), or under the agency
       EEO complaint procedure, but not both.  EEO counselors will
       provide an inquiring employee a written description of both
       procedures.
 
    (5) The Arbitrator's award in the U.S. Army Health Clinic, Fort
 Ritchie Maryland, supra, did not even mention the intervening
 suspension.
 
 
 
 
 
                                 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
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to comply with the January 20, 1984 final
 award of Arbitrator Jonas Aaron or with any arbitrator's final award
 issued pursuant to the Federal Service Labor-Management Relations
 Statute.
 
    WE WILL NOT rely on August 5, 1982 incident involving Derrick Thomas
 as the basis for imposing progressively severer penalties for other
 offenses in formal disciplinary actions.
 
    WE WILL NOT in any like or related manner fail or refuse to comply
 with any provision of the Federal Service Labor-Management Relations
 Statute.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of any rights assured under the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL comply with the January 20, 1984 final award of Arbitrator
 Jonas Aaron and any other arbitrator's final award issued pursuant to
 the Federal Service Labor-Management Relations Statute.
 
    WE WILL revoke, rescind, and remove all references to the August 5,
 1982 incident involving Derrick Thomas personnel file and from all
 formal disciplinary actions taken against Derrick Thomas including the
 January 17, 1983 notice of proposed suspension and revise such actions
 accordingly to the extent required by law and regulations, including
 rescinding the January 17, 1983 suspension.
                                       ... (Agency or Activity)