24:1021(99)CA - Air Force, HQ 832d Combat Support Group, DPCE, Luke AFB, AZ and AFGE Local 1547 -- 1986 FLRAdec CA



[ v24 p1021 ]
24:1021(99)CA
The decision of the Authority follows:


 24 FLRA No. 99
 
 DEPARTMENT OF THE AIR FORCE 
 HEADQUARTERS 832D COMBAT 
 SUPPORT GROUP,DPCE 
 LUKE AIR FORCE BASE, ARIZONA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1547
 Charging Party
 
                                            Case No. 8-CA-50167
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority because of
 exceptions filed by the Respondent to the attached decision of the
 Administrative Law Judge.  The Charging Party (the Union) filed an
 opposition to the exceptions.  The complaint alleges that the Respondent
 violated section 7116(a)(1), (5) and (8) of the Federal Service
 Labor-Management Relations Statute (the Statute) by failing to comply
 fully with an Arbitrator's award to which no timely exceptions were
 filed pursuant to section 7122 of the Statute and which therefore had
 become final and binding.  The Judge concluded that the Respondent
 violated section 7116(a)(1) and (8) of the Statute by failing to comply
 with the Arbitrator's award.  Although finding the complaint to have
 been timely filed for reasons which differ from the Judge's, the
 Authority agrees with his conclusion as to the violation by the
 Respondent.
 
                              II.  Background
 
    On September 23, 1983, Arbitrator David Goodman issued an award in
 which he found that the Respondent had violated the parties' collective
 bargaining agreement when it transferred two employees from the "swing
 shift" to day shift assignments, which resulted in the employees' loss
 of night differential (premium pay).  While the Arbitrator did not
 expressly state that the employees who were improperly reassigned were
 to be reimbursed for their lost premium pay, he did order a return to
 the status quo.  The Respondent reassigned the employees to their prior
 shift, but took the position that the award did not require the payment
 of backpay.  On January 3, 1984, the Union filed an unfair labor
 practice (ULP) charge alleging that the Respondent had failed to fully
 comply with the Arbitrator's award.  The Union subsequently sought
 clarification of the award from the Arbitrator.  On March 1, 1984, the
 Arbitrator advised the parties that the only meaning that could be
 applied to his status quo requirement was that the employees be paid for
 the premium pay they lost when they were denied access to the swing
 shift.  On March 30, 1984, the Respondent filed exceptions to the
 Arbitrator's clarification with the Authority.  On or about April 23,
 1984, the Union then withdrew its first ULP charge and on the same day
 filed a second, essentially identical charge.  On July 13, 1984, the
 Regional Director dismissed the Union's second ULP charge because of the
 Respondent's pending exceptions to the Arbitrator's award then before
 the Authority.
 
    On July 27, 1984, the Authority issued its decision in American
 Federation of Government Employees, Local Union 1547 and Department of
 the Air Force, Luke Air Force Base, Arizona, 15 FLRA 399 (1984).  The
 Authority held that the Arbitrator's clarification did not constitute a
 modification of the original award, but that it was merely a reiteration
 of an issue originally covered in the award.  The Authority held that
 exceptions, to be timely, had to be filed within 30 days after the
 original award and that the Respondent's exceptions, filed some six
 months after the award, were therefore untimely.
 
    On August 1, 1984, the Union appealed to the General Counsel
 concerning the Regional Director's dismissal of its second ULP charge.
 At a meeting held on or about September 5, 1984, the Respondent advised
 the Union that, in its view, the Authority's denial of its exceptions
 did not require the payment of backpay to the affected employees.  The
 Union filed its third ULP charge on September 10, 1984.  On September
 14, 1984, the Union asked for written confirmation of the Respondent's
 position as to backpay.  On September 17, 1984, the Respondent took the
 position that it would not comment on the merits of the backpay issue
 pending the resolution of the Union's appeal to the General Counsel of
 the Regional Director's July 13 denial of the Union's earlier ULP
 charge.  On October 31, 1984, the General Counsel affirmed the Regional
 Director's dismissal of the Union's second charge.  On January 3, 1985,
 the Union withdrew the third charge it had filed in September 1984, and
 sent the Respondent a letter reiterating its view that full compliance
 with the Arbitrator's award required the payment of backpay to the
 affected employees.  At a meeting held on January 10, 1985, the
 Respondent again took the position that the award did not require the
 payment of backpay.  On February 11, 1985 the Union filed its fourth ULP
 charge leading to issuance of the complaint in the present case.
 
               III.  The Administrative Law Judge's Decision
 
    The Judge concluded that the Respondent failed to comply with section
 7122 of the Statute, in violation of section 7116(a)(1) and (8) of the
 Statute, when it failed to pay the backpay awarded by the Arbitrator.
 The preliminary issue addressed by the Judge was whether the Union's
 fourth charge was timely filed under section 7118(a)(4)(A) of the
 statute, which precludes issuance of a complaint "based on any alleged
 unfair labor practice which occurred more than 6 months before the
 filing of the charge with the Authority." The Judge found that it was
 not clear that an actionable charge alleging a refusal to fully comply
 with the award could have been filed before the Authority denied the
 Respondent's untimely exceptions, that is, before July 27, 1984.  The
 Judge reasoned that a charge filed before that date would have been
 dismissed because of a lack of awareness of what the Arbitrator had
 actually ordered.
 
    Using July 27, 1984, as the starting date for the 6-month period for
 filing a ULP charge, the Judge recognized that the February 11, 1985
 charge was filed after that period expired.  However, the Judge found
 that the situation in this case was analogous to situations in private
 sector cases involving "continuing violations" of the National Labor
 Relations Act.  The Judge also reasoned that the policy underlying the
 statutory time limit, to protect respondents against stale claims, would
 not be offended by finding the charge to be timely.  The Judge found
 that the uncertainties of redress and the Union's diligent pursuit of
 its claim furnished equitable reasons not to dismiss the charge as
 raising a stale claim.  For those reasons, the Judge recommended that
 the Authority find that the Union's February 11, 1985 charge in this
 case was not time-barred by section 7118(a)(4)(A).
 
    In response to the Union's request to be reimbursed for its expenses,
 including legal fees incurred in pursuing this case, the Judge concluded
 that such relief would only be available pursuant to the Back Pay Act
 following the final resolution by the Authority.
 
                       IV.  Positions of the Parties
 
    In its exceptions, the Respondent contends that the Judge erred in
 concluding that the Union's unfair labor practice charge was not
 time-barred by section 7118(a)(4)(A).  The Respondent also excepts to
 "the Judge's implicit holding" that the charge was based on a continuing
 violation.  The Respondent agrees with the Judge that the time for
 filing a charge began on July 27, 1984, the date the Authority dismissed
 the Respondent's exceptions to the Arbitrator's award.  The Respondent
 argues that the charge filed on February 11, 1985 was untimely and that
 the Judge's equitable reasons for finding to the contrary are
 unsupportable.  The Respondent further contends, based on its
 interpretation of the Arbitrator's award of September 23, 1983, that it
 fully complied with the award, but that if the award included a backpay
 remedy, the remedy is contrary to the Back Pay Act.  In its opposition
 to the Respondent's exceptions, the Charging Party argues generally in
 support of the Judge's rationale, and also argues for alternative dates
 to support the finding that the charge in this case was timely filed.
 
                               V.  Analysis
 
    We agree with the Judge that the Respondent failed to comply with
 section 7122(b) of the Statute, in violation of section 7116(a) (1) and
 (8), when it refused to pay the affected employees the backpay awarded
 by the Arbitrator.  We also agree with the Judge's finding that the
 Union's unfair labor practice charge was not time-barred by section
 7118(a)(4)(A) of the Statute.  However, our timeliness determination is
 based on somewhat different reasons.
 
                              A.  Timeliness
 
    Section 7122(b) of the Statute provides "If no exception to an
 arbitrator's award is filed . . . during the 30-day period beginning on
 the date of such award, the award shall be final and binding.  An agency
 shall take the actions required by an arbitrator's final award." The
 Arbitrator's award involved in this case was dated September 23, 1983.
 The Respondent did not file exceptions to the award within 30 days of
 that date.  Therefore, the award became final and binding for compliance
 purposes on October 23, 1983, by operation of section 7122(b).
 Moreover, notwithstanding the Respondent's interpretation of the award,
 the Arbitrator remedied the loss of night differential pay of the
 affected employees which resulted from the Respondent's violation of its
 collective bargaining agreement with the Union.
 
    It is well established that an agency is obligated to comply with an
 arbitration award to which timely exceptions have not been filed and any
 failure to comply with an award under such circumstances constitutes an
 unfair labor practice.  United States Air Force, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984),
 affirmed, Department of the Air Force v. FLRA, 775 F.2d 727 (6th Cir.
 1985).
 
    Under section 7118(a)(4) of the Statute an unfair labor practice
 charge must be filed within 6 months of the occurrence of the alleged
 ULP.  In this case, the 6-month period for filing a ULP charge alleging
 that the Respondent failed to fully comply with the Arbitrator's award
 commenced on October 23, 1983, when the award became final and binding.
 The Authority has determined that for equitable reasons the running of
 the 6-month period was suspended during the pendency of the three
 separate ULP charges filed by the Union in this matter on or about
 January 3, April 23 and September 10, 1984, and that the fourth charge
 filed on February 11, 1985 was timely.
 
    The Supreme Court has held that equitable principles are applicable
 to time limits specifically established by statute.  Glus v. Brooklyn
 Eastern District Terminal, 359 U.S. 231 (1959);  Burnett v. New York
 Central R.R. Co., 380 U.S. 424 (1965);  American Pipe and Construction
 Co. v. Utah, 414 U.S. 538 (1974).  Specific statutory time limits are
 subject to modification on equitable grounds in certain circumstances.
 For example, where a party did not sleep on its rights but brought a
 timely action in a state court rather than the appropriate Federal
 court, the statutory time limit was tolled by the filing of the state
 action.  See Burnett.  The statutory time limit was also tolled or
 suspended where such action was not inconsistent with the legislative
 history of the particular statute.  See American Pipe.
 
    Applying the rationale of the Supreme Court in the above-cited
 decisions, we find that suspension of the 6-month filing period is not
 inconsistent with the legislative history of the Statute in the unique
 circumstances of this case.  There is nothing in the legislative history
 of section 7118(a)(4)(A) that precludes the application of equitable
 principles in computing the time period.  In fact, suspension of the
 time period in this case is consistent with the intent of Congress
 reflected in sections 7116 and 7118 of the Statute that unfair labor
 practices should be remedied.  Suspension is also consistent with the
 intent of Congress reflected in section 7122(b) that arbitration awards
 should be given final and binding effect except where, on timely filed
 exceptions, the Authority finds that an award is deficient.
 
    Moreover, the record in this case is replete with examples showing
 that the Union did not sleep on its rights in this matter but, rather,
 that it continuously and diligently sought to have the Arbitrator's
 September 23, 1983 award fully implemented by the Respondent through
 numerous requests, meetings and ULP charges.  As to the charges, all
 four were essentially identical, alleging that the Respondent refused to
 fully comply with the Arbitrator's award in violation of the Statute.
 We note in particular that the Union's timely filed charge of April 23,
 1984, was dismissed by the Regional Director and its appeal from that
 action was subsequently denied by the General Counsel essentially
 because the Respondent's exceptions to the Arbitrator's award were still
 pending before the Authority.  On that basis, the Union, without fault
 and without a determination on the merits of its claim, was left without
 an actionable charge to redress the Respondent's refusal to fully
 implement the Arbitrator's award.
 
    Under these unique circumstances, we have determined that the
 Respondent should not escape its obligation to fully comply with the
 Arbitrator's award, which required the payment of backpay to the
 affected employees.  Accordingly, we conclude that the period for filing
 a ULP charge in this case was first tolled with the timely filing of the
 Union's April 23, 1984 charge, and that the running of the time period
 was there-after suspended through the filing of the Union's fourth ULP
 charge February 11, 1985.  It follows that the fourth charge was timely
 and not time-barred.
 
                           B.  Refusal to Comply
 
    On the merits of the complaint, there is no question that the
 Respondent failed to provide the backpay called for in Arbitrator
 Goodman's September 23, 1983 award.  Any question which the Respondent
 had as to the legality of the award should have been raised through
 timely exceptions filed with the Authority pursuant to section 7122(a)
 of the Statute.  As noted above, the Authority found the exceptions
 filed by the Respondent to be untimely.  Therefore, the Arbitrator's
 award was final and binding and, as correctly found by the Judge, it
 cannot be collaterally attacked in an unfair labor practice proceeding.
 Department of the Treasury, United States Customs Service, New York
 Region, New York, New York, 21 FLRA No. 119 (1986);  Military Sealift
 Command (Atlantic), 21 FLRA No. 111 (1986).
 
                              VI.  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 and the opposition to
 the exceptions, the positions of the parties, and the entire record, and
 adopts the Judge's findings, conclusion, and recommended Order as here
 modified.  We therefore conclude that the Respondent's failure to pay
 the backpay required by the Arbitrator's award, which had become final
 and binding under section 7122(b) of the Statute in the absence of
 timely exceptions, constituted a failure to comply fully with the
 Arbitrator's award in 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, it is
 ordered that the Department of the Air Force, Headquarters 832D Combat
 Support Group, DPCE, Luke Air Force Base, Arizona, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to fully implement Arbitrator David
 Goodman's arbitration award rendered on September 23, 1983.
 
    (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) Fully comply with Arbitrator David Goodman's September 23, 1983
 arbitration award by making whole employees Trujillo and Gratz for the
 shift differential premium pay they lost from the time of their removal
 from the swing shift until they were returned to that shift on October
 31, 1983.
 
    (b) Post at its Luke Air Force Base 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
 Commanding Officer and shall be posted and maintained for 60 consecutive
 days thereafter, in conspicuous places, including all bulletin boards
 and other places where notices to employees are customarily posted.
 Reasonable steps shall be taken to insure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VIII, 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.
 
    It is further ordered that the section 7116(a)(5) allegations of the
 complaint be dismissed.
 
    Issued, Washington, D.C., December 31, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, 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 fully implement Arbitrator David
 Goodman's arbitration award rendered on September 23, 1983.
 
    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 fully comply with Arbitrator David Goodman's September 23,
 1983 arbitration award by making whole employees Trujillo and Gratz for
 the shift differential premium pay they lost from the time of their
 removal from the swing shift until they were returned to that shift on
 October 31, 1983.
                                       . . . (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 VIII, Federal Labor Relations Authority, whose address
 is:  350 South Figueroa Street, 10th Floor, Los Angeles, California
 90071, and whose telephone number is:  (213) 894-3805.
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.  8-CA-50167
 
 DEPARTMENT OF THE AIR FORCE 
 HEADQUARTERS 832D COMBAT SUPPORT GROUP,
 DPCE LUKE AIR FORCE BASE, ARIZONA
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 1547
    Charging Party
 
    Lt. Col. Charles E. Brower, Esq.
    For the Respondent
 
    Ronald Wayman
    Stanley Lubin, Esq., on brief
 
    For the Charging Party
    John R. Pannozzo, Jr., Esq.
 
    Gerald M. Cole, Esq.
    For the General Counsel
 
    Before:  JOHN H. FENTON
    Chief 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., and the Rules and Regulations issued thereunder at
 5 CFR 2411 et seq.  It arose upon the filing of an unfair labor practice
 charge on February 11, 1985 by Local 1547.  On April 4, 1985, the
 Regional Director of Region VIII, Federal Labor Relations Authority
 issued a Complaint alleging that Respondent violated Sections
 7116(a)(1), (5) and (8) of the Statute on September 5, 1984 and on
 January 10, 1985 and "continuing to date" by refusing to completely
 comply with an arbitration award.  At issue is whether Respondent
 violated the law by refusing to make two employees whole for loss of
 night differential pay.
 
    A hearing was held on May 8, 1985 in Phoenix, Arizona, at which the
 facts were largely stipulated.  None of the facts relied upon herein was
 disputed.
 
                             Findings of Fact
 
    1.  On December 30, 1982, the Union grieved Respondent's decision to
 transfer the two civilian employees on its swing shift in the Pick-Up
 and Delivery Section of the Aerospace Ground Equipment Branch of the
 405th Equipment Maintenance Squadron to the day shift.  Employee
 Trujillo was assigned to the day shift on December 27, 1982, and
 employee Gratz was assigned on January 10, 1983.  Both men thereby lost
 the night shift differential.
 
    2.  On September 23, 1983, Arbitrator David Goodman issued his Award,
 finding that Respondent had violated its contractual obligation to
 negotiate concerning the reassignments.  Respecting the question of an
 appropriate remedy, the Arbitrator said:
 
          a return to status quo . . . remedy is embodied within the
       language of Article V1, 3. which says "In no case" will a change
       be implemented until negotiations are completed.  Thus, the
       Arbitrator is left with no choice but to order the parties back to
       where they were before the December 14, 1982 letter from Sergeant
       Williams (ordering the reassignment) . . . and to further order
       that the parties immediately meet and negotiate this change.
       (Parenthetical comment mine).
 
    3.  The Arbitrator, in addressing the remedy, made no explicit
 mention of backpay for Trujillo and Gratz, although he had asked the
 Union whether it wished him to make a determination respecting
 entitlement to backpay, and had been told that it did.
 
    4.  On October 19, Respondent informed the Union that it would return
 the men to the swing shift effective October 30, would reassign them to
 the day shift effective November 28, and that the Union should forward
 its proposals concerning the impact and implementation of the decision
 to return them to the day shift no later than November 1.
 
    5.  On October 20, Respondent told the Union that, in its opinion,
 the Arbitrator had not ordered backpay.  On October 26, the Union
 responded that such position constituted noncompliance with the Award,
 which had become final upon expiration of the appeal period, and that
 backpay for the swing shift differential was continuing to accumulate.
 
    6.  Gratz and Trujillo were reassigned to the swing shift on October
 31 and back to the day shift on November 28.  In the interim Respondent
 twice restated its view that the Award made no provision for backpay.
 
    7.  On December 2, the Union unilaterally requested that the
 Arbitrator clarify his award with respect to the backpay issue, and on
 January 3, 1984 it filed an unfair labor practice charge alleging
 refusal to implement the Award.
 
    8.  On March 1, the Arbitrator advised the parties that:
 
          . . . the status quo remedy was clearly intended to require the
       Air Force to make these employees whole for all lost wages
       incurred when they were removed from the second shift.  After all,
       only one meaning can attach to status quo -- employees should be
       placed back to the position where they would have been but for a
       breach of the Agreement.  Accordingly, the Employer is advised
       that those civilian employees on second shift at the time of the
       breach are entitled to the premium pay for the period of time they
       were denied access to the second shift.
 
    9.  On March 30, Respondent filed exceptions to the Arbitrator's
 "clarification" of his Award.
 
    10.  In April the Union withdrew its unfair labor practice charge,
 substituting another one apparently identical in its terms.
 
    11.  On July 13, the Regional Director refused to issue a complaint
 on the following grounds:
 
          The Charging Party asserts that the exceptions filed on March
       30, 1984, were untimely and that the Authority has no jurisdiction
       to review the clarification because it is not a separate award.
       However, the Authority has held that exceptions filed on a
       clarification of an arbitrator's award will be accepted as timely
       provided that the deficiencies in the award did not arise until
       the clarification, and the exceptions are filed within the proper
       time period commencing on the date of the clarification.  U.S.
       Department of the Interior, Bureau of Land Management, Eugene
       District Office, 6 FLRA No. 72 (1981).  Moreover, any questions
       regarding the scope and nature of the Authority's jurisdiction to
       review the award should be first addressed by the Authority
       itself.  Since the Authority has not yet issued its decision on
       the exceptions to this arbitration award, the Activity's failure
       to implement the award as clarified pending the Authority's
       decision is not violative of the Statute.
 
    12.  On July 27, the Federal Labor Relations Authority issued its
 Order Dismissing (Respondent's) Exceptions as untimely filed (15 FLRA
 No. 83).  The Authority held that the arbitrator's March 1 letter had
 essentially advised the parties of the clear intent of the September 23
 Award, rejecting the Agency's contention that such letter modified the
 Award and hence gave rise to the deficiencies alleged in its exceptions.
  The time for filing exceptions was therefore calculated from the date
 the September Award was served on the parties.
 
    13.  On September 5, Respondent reiterated its view that the
 September Award did not require backpay.  The Union responded on
 September 10 by filing another unfair labor practice charge (8-CA-40459)
 alleging refusal to implement the Award.  A Complaint was issued on
 November 27 but, for unexplained reasons the charge was withdrawn on
 January 3, 1985 and the Complaint dismissed on January 9.
 
    14.  On September 14, the Union by letter contended that Respondent's
 conduct constituted a contract violation, and requested a written
 response.  On September 17, Respondent replied that it would be
 inappropriate to respond during the pendency of the Union's appeal from
 the Regional Director's refusal to issue Complaint.
 
    15.  On October 31, the General Counsel denied the Union's appeal.
 Noting that Section 2429.8(b) of the Authority's Rules provides for a
 stay of an arbitrator's award where timely exceptions are filed and a
 stay is requested, and that the exceptions were still pending at the
 time the Regional Director dismissed the charge, the General Counsel
 found noncompliance witwh the Award in such circumstances did not
 constitute an unfair labor practice.
 
    16.  On January 10, 1985, Respondent for the last time restated its
 opinion that the Award did not require it to pay Gratz and Trujillo
 backpay, and on February 11, the Union filed the instant unfair labor
 practice charge.
 
                            Conclusions of Law
 
    Section 7122 provides that a party to arbitration must "take the
 actions required by an arbitrator's final award".  Further, an award
 becomes final and binding when exceptions are not filed with the
 Authority "during the 30-day period beginning on the date the award is
 served on the party", or when the Authority issues its decision denying
 exceptions.  Here Respondent did not file timely exceptions to the
 original award, and did not succeed with the exceptions filed to the
 Arbitrator's letter of "clarification".  Rather, the Authority's
 Decision, noting that the Arbitrator had essentially advised the parties
 of the clear intent of his Award, dismissed the exceptions as untimely
 filed with respect to the date of the original award.  As Respondent has
 refused to reimburse the employees for the premium pay they lost while
 denied access to the second shift, it clearly has failed to comply with
 Section 7122 in violation of Section 7116(a)(1) and (8).  /1/
 Respondent's various defenses -- that the Arbitrator was functus officio
 when he explicitly ordered backpay, that his supplemental action was
 secured by a unilateral and ex parte request, and that his Award is
 contrary to the Backpay Act -- are matters which were subject to review
 by the Authority pursuant to Section 7122, and are not subject to
 collateral attack in this forum.  /2/ Nevertheless, the question remains
 whether the unfair labor practice charge, filed on February 11, 1985,
 can reach back to any act or event which constitutes an unfair labor
 practice.
 
    Section 7118(c)(4)(A) precludes issuance of a complaint "based on any
 alleged unfair labor practice which occurred more than 6 months before
 the filing of the charge with the Authority".  Here, slightly more than
 six months elapsed between the issuance of the Authority's Order
 Dismissing Exceptions on July 27, 1984 and the filing of the charge on
 February 11, 1985.  Literally read, that Order simply held that the time
 for filing exceptions expired on October 28, 1983, and thus the Award
 became final and binding some 15 months before the unfair labor practice
 charge was filed.  I need not decide whether such was the case, or
 whether the subsequent proceedings before the Arbitrator and the
 Authority served to "toll" the running of the statute of limitations,
 for in either event the action which would arguably trigger the
 operation of Section 7118(a)(4)(A) occurred outside its six-month
 period.  Hence Respondent's failure to implement the terms of the Award
 is actionable only if its conduct can be said to constitute a
 "continuing violation", i.e., it is deemed to violate the law on each
 and every day it remains in noncompliance, or a violation can somehow be
 said to have occurred in September of 1984 and January of 1985 when it
 restated its unwillingness to obey the Arbitrator.
 
    The National Labor Relations Act contains, in Section 10(b), a
 limitations clause substantively identical to our own.  It has spawned
 much of what is, perhaps sometimes loosely, termed "elucidating
 litigation" over the types of violations which are by nature
 "continuing", so as to escape the application of the limitations
 provision.  Over the years the Labor Board has sought to fashion such
 violations, particularly with respect to employment discrimination and
 the bargaining obligation, and has met with mixed reviews from various
 U.S. Court of Appeals and from the U.S. Supreme Court.  A brief look at
 that experience may be instructive.
 
    The purpose of Section 10(b) is to bar litigation over past events
 "after records have been destroyed, witnesses have gone elsewhere, and
 recollections of the events in question have become dim and confused."
 /3/ The Supreme Court was there confronted with the question whether the
 Board had properly found a violation of the LMRA based upon the
 enforcement of a union-security clause which was valid on its face, but
 which had been executed well before the 10(b) cutoff date at a time when
 the union did not enjoy the majority status required by law.  The Board
 found a violation based on the continuing enforcement of the
 union-security clause within the six-months limitations period, finding
 (or defining) the evidence respecting the legality of the contract's
 execution as admissible "background evidence" relevant to determining
 whether the conduct within six months of the unfair labor practice
 charge was unlawful.
 
    The Supreme Court rejected this approach with the following analysis:
 
          It is doubtless true that section 10(b) does not prevent all
       use of evidence relating to events transpiring more than six
       months before the filing and service of an unfair labor practice
       charge.  However, in applying rules of evidence as to the
       admissibility of past events, due regard for the purposes of
       section 10(b) requires that two different kinds of situations be
       distinuished.  The first is one where occurrences within the
       six-month limitation period in and of themselves may constitute,
       as a substantive matter, unfair labor practices.  There, earlier
       events may be utilized to shed light on the true character of
       matters occurring within the limitations period;  and for that
       purpose section 10(b) ordinarily does not bar such evidentiary use
       of anterior events.  The second situation is that where conduct
       occurring within the limitations period can be charged to be an
       unfair labor practice only through reliance on an earlier unfair
       labor practice.  There the use of the earlier unfair labor
       practice is not merely "evidentiary," since it does not simply lay
       bare a putative current unfair labaor practice.  Rather, it serves
       to cloak with illegality that which was otherwise lawful.  And
       where a complaint based upon that earlier event is time barred, to
       permit the event itself to be so used in effect results in
       reviving a legally defunct unfair labor practice.
 
    From here the Court went on to examine a number of cases illustrating
 the extraordinary difficulty of applying these principles, and concluded
 that it need not express a view on them, for it was not required for
 present purposes to "go beyond saying that a finding of violation which
 is inescapably grounded on events predating the limitations period is
 directly at odds with the purposes of the section 10(b).  proviso."
 Here, I think significantly, it dropped footnote 14, in responding to
 dissenting Justices Whittaker and Frankfurter, /4/ wherein it said:
 
          Katz v. Labor Board, 196 F.2d 411, 30 LRRM 2063, and Labor
       Board v. Gaynor News Co., 197 F.2d 719, 30 LRRM 2340, relied on
       below and in dissent here, arose under provisions of the Act
       (section 8(a)(3), 61 Stat. 140) since repealed (65 Stat. 601),
       which permitted union security agreements only with unions which
       possessed a Board certificate that a union security clause had
       been authorized at a special election of the employees involved.
       While the language, and perhaps the approach, of these cases may
       be considered inconsistent with the principles we deem governing
       here, the decisions on their facts present no such difficulty.
       Proof of the nonexistence of such a certificate, which of course
       was a continuing fact, plainly did not require resort to testimony
       about past events;  rather the issue was much like one arising out
       of an agreement illegal on its face, the only difference being
       that a separate instrument was involved.
 
    Here we face a virtually identical situation:  proof of the existence
 of the obligation to implement the Arbitrator's award does not depend on
 recollections which have become dim and confused, or witnesses who have
 disappeared, but rather upon the existence of an instrument akin to the
 certificate involved in Katz and in Gaynor News -- the Arbitrator's
 decision or the Authority's Order.  In either event the separate
 instrument is readily available to establish Respondent's legal
 obligation, so that the policy underlying the statutory limitations
 period is not offended:  i.e. there is no occasion to resort to the
 kinds of unreliable evidence precluded by Section 10(b) in order to
 establish an unfair labor practice predating the limitations period as a
 predicated for the unfair labor practice sought to be established within
 that period.
 
    The NLRB has taken the same approach in cases involving the
 obligation to bargain, a subject more closely analogous to the present
 controversy.  Where a union has been certified by the Board as the
 representative of a majority of employees in a collective bargaining
 unit, the Board will not, except in the rarest of circumstances,
 entertain any challenge to the continuing majority status of that union
 for a period of one year from the issuance of the certification.  In
 such a situation, the Board has held a charge of refusal to bargain to
 be timely where it was filed within the certification year, although
 more than six months after the first bargaining request was made and
 unlawfully rejected.  /5/ Likewise the Board has held the repudiation of
 obligations arising under a collective bargaining agreement to
 constitute a continuing violation.  Thus, it has held that the fact that
 the initial repudiation of an agreement occurred outside the Section
 10(b) cutoff date does not absolve a respondent from the unfair labor
 practices which inure from its continuing failure, within such
 limitations period, upon demand to execute or abide by the agreement
 reached.  /6/ However, it limited statutory relief, i.e. it ordered that
 the terms of the collective bargaining agreement be applied
 retroactively only to the cutoff date.
 
    The chief concern with such an approach is that it would, in like
 cases, render permanently inoperative the policy of protecting
 Respondents' against stale claims.  At some point, it would seem,
 considerations of laches or waiver arguably ought to come into play.
 /7/
 
    On this record, I would give little weight to such considerations.
 Here the charge I find actionable was filed only a few weeks ago after
 expiration of the six months period following the Authority's final
 action on the case, and several weeks after the Union's final and futile
 demand that Respondent comply with the backpay provisions of the Award.
 Moreover, the Union had kept the controversy alive from the beginning
 with repeated requests for payment, and by diligently filing a series of
 unfair labor practice charges directed at Respondent's unwillingness
 fully to implement the Award.
 
    As noted, the Union filed its first charge several months after the
 original Award, withdrew it, and filed an identical charge barely within
 six months of the date when that Award became "final".  That charge was
 dismissed because of the then-pending exceptions to the Arbitrator's
 supplemental "decision", and the General Counsel, noting that a stay had
 been requested, sustained that dismissal.  The Union may arguably be
 faulted for its withdrawal of a like charge filed after the Authority's
 Order, which had led to issuance of a complaint.  However, its action,
 unexplained on this record, must be viewed against the confusion in the
 state of the law thus far elaborated under Section 7122.
 
    Thus, it is not clear that an actionable charge could have been
 filed, based on the refusal to implement the Award, at any time before
 the Authority had disposed of the exceptions.  A charge filed during the
 five-month period between the Award's becoming "final" (i.e., upon the
 lapse of 30 days free of exceptions), and the issuance of the
 Arbitrator's supplemental decision might well have been dismissed for
 essentially the same reasons that led to dismissal of the charge filed
 after his actions:  that it could not be known what was required of
 Respondent until the Arbitrator acted upon the request for
 clarification.  Thereafter, of course, the pendency of exceptions and
 the associated stay precluded the filing of an actionable charge.  A
 viable charge apparently could not have been filed prior to issuance of
 the Order Dismissing Exceptions, and the Order can literally be read as
 holding that any subsequent charge would be time-barred for the reasons
 the exceptions were:  because the clock began to run on the thirteenth
 day after issuance of the original Award, some nine months before the
 Authority acted.  These uncertainties of redress, and the Union's
 diligent pursuit of its claim, would appear to furnish equitable reasons
 not to dismiss the charge as one raising a stale claim.  /8/
 
    Lastly, Charging Party seeks, in addition to a conventional backpay
 order, an order directing that it be reimbursed for expenses, including
 legal fees.  It rests it claim on the Respondent's "frivolous, indeed
 absurd" grounds for refusing to comply with the Arbitrator' Award and
 cites two celebrated private sector cases as grounds for such relief.
 /9/ Aside from the fact that the violation here is in no way comparable
 to the egregious violations in those cases, I am unaware of any
 authority in the public sector to assess such expenses against the
 government, except for legal fees and associated expenses covered by the
 Back Pay Act and the Equal Access to Justice Act.  The latter would not
 apply, but the former may.  The relevant statutory provision is found at
 5 U.S.C. section 5596, which incorporates 5 U.S.C. section 7701(g), and
 the Authority has dealt with the issue in International Brotherhood of
 Electric Workers and United States Army Support Command, Hawaii, 14 FLRA
 680.  I take Section 5596(b)(1) to require an Authority decision
 sustaining my finding of entitlement to backpay, before an application
 for a fee is in order, and direct that, in such event, the parties
 follow the procedures, as relevant here, set forth in Part 2430 of the
 Rules and Regulations.
 
    Having concluded that Respondent failed to comply with Section 7122
 of the Statute in violation of Section 7116(a)(1) and (8), I recommend
 that the Authority enter the following:
 
                                   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 Department of the Air Force, Headquarters 832d
 Combat Support Group, DPCE, Luke Air Force Base, Arizona, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing fully to implement Arbitrator David
       Goodman's Arbitration Award rendered on September 23, 1983.
 
          (b) In any like or related manner interfering, restraining or
       coercing employees in the exercise of their rights assured by the
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Fully comply with Arbitrator David Goodman's September 23,
       1983 Arbitration Award by making whole employees Gratz and
       Trujillo for the shift differential premium pay they lost from the
       time of their removal from the swing shift until they were
       returned to that shift on October 31, 1983.
 
          (b) Post at its Luke Air Force Base facility, 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 Commanding Officer, or his designee, and shall be
       posted and maintained for 60 consecutive days thereafter,
       inconspicuous places, including all bulletin boards and other
       places where notices to employees are customarily posted.
       Reasonable steps shall be taken to insure that such Notices are
       not altered, defaced, or covered by any other material.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region VIII, 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/ John H. Fenton
                                       JOHN H. FENTON
                                       Chief Administrative Law Judge
 
    Dated:  March 26, 1986
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
    (*) The Judge correctly found it unnecessary to pass upon the section
 7116(a)(5) allegation of the complaint, and no exceptions were taken to
 his Decision in this regard.
 
 
    (1) United States Army Health Clinic, Ft. Ritchie, Maryland, 9 FLRA
 935;  United States Air Force, Air Force Logistics Command,
 Wright-Patterson Air Force Base, 15 FLRA 151.  I do not pass on the
 Section 7116(a)(5) allegation, noting that in the latter case the
 Authority found it unnecessary to do so.
 
    (2) United States Air Force, Air Logistics Command, Wright-Patterson
 Air Force Base, Ohio 15 FLRA No. 151;  aff'd sub nom. Department of the
 Air Force v. FLRA, 775 F.2d 727 (CA 6);  Veterans Administration Medical
 Center, Phoenix, Arizona, 15 FLRA 706.
 
    (3) Local Lodge 1424 v. NLRB, 362 U.S. 411, 45 LRRM 3212, 3216.
 
    (4) Local Lodge, supra, 45 LRRM 3212, 3217.
 
    (5) See, for example, Sewanee Coal Operators' Association, 167 NLRB
 172.  The Board found the first request to be a continuing one, at least
 for the duration of the certification year, noting that it would have
 been futile for the union to have "continuously repeated such requests
 thereafter." As an apparent safety measure, the Board also treated the
 charge which was filed more than six months after the refusal as
 tantamount to an explicit request to bargain, thus rendering
 simultaneous the last request/refusal to bargain and the filing of the
 charge.
 
    (6) Anchor Rome Mills, 110 NLRB 956, enf'd 228 F.2d 775 (CA-5), 37
 LRRM 2367;  Al Bryant, Inc., 260 NLRB 128, 135, 109 LRRM 1284, enf'd 113
 LRRM 3690 (CA-3).  It is to be underscored that these cases involved
 repeat demands for compliance within six months of the filing of the
 unfair labor practice.  See also, Tarrington Construction Co., 235 NLRB
 1540, fn. 2.
 
    (7) In recommending that the Authority not find the charge
 time-barred, I am not unaware of the Sixth Circuit's holding that "the
 limitation period for filing an unfair labor practice charge based on a
 refusal to implement an arbitration award begins to run on the date the
 award becomes final pursuant to Section 7122(b)." U.S. Air Force v.
 FLRA, 775 F.2d 727, enfg. 15 FLRA 151.  Neither the Court nor the
 Authority confronted the issued presented here.  Rather, they read
 Section 7122(b) as making a refusal to obey an award actionable only
 when it becomes "final and binding" upon expiration of the 30 days for
 filing exceptions.
 
    (8) I have made Respondent's Citation of Supplemental Authority,
 filed on October 22, 1985, a part of the record herein, over Charging
 Party's objection.  Rule 28(j) of the Federal Rules of Appellate
 Procedure permits receipt of such materials after briefs have been
 filed.  However, I give no