23:0556(77)CO - AFGE Local 3511 and VA, Audie L. Murphy Memorial Veterans Hospital, San Antonio, TX -- 1986 FLRAdec CO



[ v23 p556 ]
23:0556(77)CO
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.