23:0556(77)CO - AFGE Local 3511 and VA, Audie L. Murphy Memorial Veterans Hospital, San Antonio, TX -- 1986 FLRAdec CO
[ v23 p556 ]
The decision of the Authority follows:
23 FLRA No. 77 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3511, AFL-CIO Respondent and VETERANS ADMINISTRATION AUDIE L. MURPHY MEMORIAL VETERANS HOSPITAL, SAN ANTONIO, TEXAS Charging Party Case No. 6-CO-50043 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel filed a brief for the Authority's consideration. The complaint alleges that the Respondent Union violated section 7116(b)(1), (5) and (8) of the Statute by failing and refusing to comply with the provisions of section 7122 of the Statute by refusing to fully comply with an arbitrator's award to which exceptions were filed and which had been subsequently denied by the Authority. II. The Facts The Veterans Administration and the American Federation of Government Employees, AFL-CIO have been parties to a master agreement covering a nationwide consolidated unit, including employees of the Audie L. Murphy Memorial Veterans Hospital, San Antonio, Texas (Activity). The Activity has recognized the Respondent Union as the local representative of AFGE for the purposes of collective bargaining and representation of a unit of Activity employees. On October 5, 1983, the Activity filed a grievance alleging that the Respondent Union had violated Articles 6 and 24 of the master agreement by, among other things, issuing a news release which made libelous and defamatory attacks upon management and employees of the facility concerning the disposal of certain material. On June 25, 1984, Arbitrator Harry L. Johnson issued an award finding that the Union had violated the agreement as alleged and sustaining the Activity's grievance. As a remedy, the Arbitrator directed the Union to take the following actions: 1. Purchase a one-half page ad in all San Antonio daily newspapers stating clearly and without ambiguity, a) that what was found in the autopsy room did not contain any human tissue; b) that the action taken by the officials of AFGE was in violation of the VA/AFGE Master Agreement; and c) that in the future, the terms/conditions of the contract will be followed. 2. Write a letter addressed to all employees retracting all allegations in this case and post the letter with a copy of the advertisement on both bulletin boards used by AFGE for a period of sixty (60) days. 3. Write a letter to Management committing President Garcia and Vice President Fenstermacher and Local 3511 to the provisions of the VA/AFGE Master Agreement with the assurance that, in the future, all matters that concern the Local will be brought to the attention of Management in accordance with the Master Agreement. 4. Forward a copy of the letters in 2 & 3 along with a copy of the paid advertisement to Television Stations Channels 4, 5, and 12, requesting them to announce that Union's charges which they broadcast were erroneous. 5. Complete the above tasks on or before July 16, 1984, at 4:30 p.m. with copies to Management. The Respondent Union filed timely exceptions to the Arbitrator's award with the Authority alleging that the award was contrary to law, including the Constitution of the United States, and the master agreement. The Activity filed an opposition, contending that the Union's arguments constituted nothing more than disagreement with the Arbitrator's findings of fact and his interpretation and application of the agreement. The Authority found, after careful consideration of the record, including the submissions of the parties, that the Union had failed to establish that the arbitrator's award was deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, the Authority denied the Union's exceptions. Audie L. Murphy Memorial Veterans Hospital, Veterans Administration, San Antonio, Texas and American Federation of Government Employees, Local 3511, San Antonio, Texas, Case No. 0-AR-812, issued April 23, 1985. On June 17, 1985, the Activity requested the Respondent Union to comply with the arbitrator's award by July 19, 1985. The Union's President and Vice President advised the Activity that the Union would not comply with that portion of the award which required the Union to purchase ads in the daily papers and to contact the local television news media. The Union asserted that the arbitrator's award violated its constitutional rights. The Union has failed and refused and continues to fail and refuse to comply with the arbitrator's award. III. Positions of the Parties The General Counsel's position is that the Respondent Union's refusal to implement the arbitration award is violative of section 7116(b)(1), (5) and (8) of the Statute. The General Counsel asserts that the Respondent Union presented the same arguments regarding the unconstitutionality of the arbitration award to the Authority in its exceptions to the award. The Authority considered the Union's exceptions and rejected them. Since the Union's exceptions to the arbitration award were dnied by the Authority, the award is final and binding and the Union is required to implement the award pursuant to section 7122 of the Statute. Thus, the Union's refusal to do so is violative of the Statute. Neither the Union nor the Activity filed briefs or arguments in the case. IV. Analysis In this case, there is no question as to whether the Respondent Union has complied with the arbitrator's award. The Respondent Union admits that it has not done so. The Union defends its failure and refusal to comply with the award by reiterating an argument previously made in an exception that was considered and denied by the Authority. It is well established that a party to an arbitrator's award must implement such an award, when timely filed exceptions to the award have been denied by the Authority, and that the failure or refusal by a party to implement such an award constitutes a violation of section 7116(a)(1) and (8) of the Statute. See Department of the Treasury, United States Customs Service, New York Region, New York, New York, 21 FLRA No. 119 (1986); U.S. Department of Justice and Department of Justice, Bureau of Prisons, (Washington, D.C.) and Federal Correctional Institution (Danbury, Connecticut), 20 FLRA No. 5 (1985), enforced sub nom. U.S. Department of Justice and Department of Justice, Bureau of Prisons v. FLRA, 792 F.2d 25 (2d Cir. 1986); General Services Administration, Washington, D.C., 18 FLRA No. 52 (1985); United States Marshals Service, 13 FLRA 351 (1983), enforced sub nom. United States Marshals Service v. FLRA, 778 F.2d 1432 (9th Cir. 1985). Based on the foregoing precedent, the Authority finds that the Respondent Union was required to implement the arbitration award which became final and binding within the meaning of section 7122(b) of the Statute upon the Authority's denial of the Respondent Union's exceptions. V. Conclusion The Authority has considered all the facts and circumstances of this case, including the positions of the parties. The Authority concludes that the Respondent Union violated section 7116(b)(8) of the Statute by failing and refusing to comply with the requirements of section 7122 of the Statute by refusing to fully implement the arbitration award of Arbitrator Harry L. Johnson rendered on June 25, 1984, when its exceptions to the arbitrator's award had been denied by the Authority. In the circumstances of this case, the Authority finds it unnecessary to pass upon whether such conduct was also violative of section 7116(b)(1) and (5) 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, it is ordered that the American Federation of Government Employees, Local 3511, AFL-CIO, shall: 1. Cease and desist from: (a) Failing and refusing to fully implement the June 25, 1984 arbitration award of Arbitrator Harry L. Johnson rendered in Audie L. Murphy Memorial Veterans Hospital, Veterans Administration, San Antonio, Texas and American Federation of Government Employees, Local 3511, San Antonio, Texas, Arbitration File No. 84K/02774. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Fully comply with the June 25, 1984 award of Arbitrator Harry L. Johnson, including purchasing the required one-half page ad in all San Antonio daily newspapers and contacting the local television stations as directed requesting that they announce that the previously broadcast accusations of the Union were erroneous. (b) Post at its business offices and its normal meeting places, including all places where notices to members and employees of the Veterans Administration, Audie L. Murphy Memorial Veterans Hospital are customarily posted, 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 President of the American Federation of Government Employees, Local 3511, AFL-CIO, 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 members and other employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (c) Submit appropriate signed copies of such Notices to the Director, Audie L. Murphy Memorial Veterans Hospital, Veterans Administration, for posting in conspicuous places where notices to unit employees are customarily posted, where they shall be maintained for a period of 60 consecutive days from the date of posting. (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., September 30, 1986. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Dissent of Chairman Calhoun I agree that Respondent's refusal to comply with the arbitration award in this case violates section 7116(b)(8) of the Statute. However, contrary to my colleagues, I do not believe that the policies and purposes of the Statute will be effectuated at this time by ordering the Respondent to purchase ads in local newspapers in the San Antonio area or contact the local television stations for the purpose of having them announce that previously broadcast accusations of the Union were erroneous. Indeed, I believe that compliance with the order may well exacerbate rather than remedy the problem. Nearly three years have passed since the underlying grievance in this case was filed and undoubtedly the incident has long since passed from the public consciousness. While the publication and broadcast remedy may well be proper in other cases, the extraordinary nature of that remedy coupled with the passage of time leads me to conclude that it is inappropriate here. Issued, Washington, D.C., September 30, 1986. /s/ Jerry L. Calhoun, Chairman FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /*/ Chairman Calhoun dissents from the Order in this decision.