27:0759(81)CA - Wyoming Air National Guard, Cheyenne, WY and NAGE Local R14-76 -- 1987 FLRAdec CA



[ v27 p759 ]
27:0759(81)CA
The decision of the Authority follows:


 27 FLRA No. 81
 
 WYOMING AIR NATIONAL GUARD, 
 CHEYENNE, WYOMING
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R14-76
 Charging Party
 
                                            Case Nos. 7-CA-60326
                                                      7-CA-70006 /1/
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This matter is before the Authority under section 2429.1(a) of the
 Authority's Rules and Regulations based on stipulations of facts by the
 parties who have agreed that no material issue of fact exists.  The
 General Counsel, the Charging Party (the Union) and the National Guard
 Bureau on behalf of the Respondent have filed briefs with the Authority.
  /2/
 
    The complaints allege that the Respondent violated section 7116(a)(1)
 and (8) of the Statute by failing and refusing to comply with an
 arbitration award issued on January 15, 1986, by Arbitrator James A.
 Evenson when its request for a stay was denied by the Authority on April
 15, 1986, and when its exception to the arbitration award was denied by
 the Authority on August 18, 1986.
 
                              II.  Background
 
    As stipulated by the parties, on January 15, 1986, Arbitrator James
 A. Evenson issued an award concerning a grievance under a collective
 bargaining agreement between the Union and the Respondent.  The
 grievance arose when prior to the expiration of the agreement, the
 Respondent notified the Union that on expiration of the agreement, the
 Respondent was electing no longer to be bound by the practice embodied
 in Article XXIX of the agreement relating to the wearing of the military
 uniform by civilian technicians.  The Respondent also notified the Union
 that beginning on and after May 13, 1985, which date constituted the
 Respondent's determination as to when the agreement expired, civilian
 technicians would be required in accordance with agency regulation to
 wear the military uniform while performing technician duties.  Article
 XXIX of the agreement provided that the technicians had the option while
 perfoming their technician duties of wearing either the appropriate
 military uniform or "standard civilian attire" approved by the Adjutant
 General.  The Union filed a grievance that was submitted to arbitration
 disputing that the agreement expired on the date specified by the
 Agency.
 
    In resolving the grievance, the Arbitrator noted the parties
 agreement that on expiration of the agreement, the Respondent could
 require the wearing of the military uniform.  He determined however that
 the agreement had not expired on the date specified by the Respondent
 and that the Respondent had violated the agreement by requiring the
 wearing of the military uniform beginning on that date.  Accordingly,
 the Arbitrator sustained the grievance and ordered the Respondent to
 comply with the terms of the collective bargaining agreement until the
 agreement expired.
 
    On March 4, 1986, the National Guard Bureau, on behalf of the
 Respondent, filed with the Authority an exception to and a request for a
 stay of the arbitration award.  By order dated April 15, 1986, the
 Authority denied the request for a stay without deciding the merits of
 the exception.  On August 18, 1986, the Authority issued its decision in
 Wyoming Air National Guard (WANG) and National Asssociation of
 Government Employees (NAGE), Local No. 14-76, 23 FLRA No. 33 (1986),
 denying the exception.  On September 24, 1986, the Authority denied the
 Respondent's motion for reconsideration of the denial of its exception.
 The Respondent has failed and refused to comply with Arbitrator
 Evenson's award.
 
                      III.  Positions of the Parties
 
    The General Counsel's position is that the Respondent's refusal to
 comply with the arbitration award constitutes a violation of section
 7116(a)(1) and (8) of the Statute.  Citing AFGE Local 3090 v. FLRA, 777
 F.2d 751 (D.C. Cir. 1985), the General Counsel contends that the
 Respondent violated the Statute by refusing to comply with the award
 when the Authority denied Respondent's request for a stay of the award
 even though the Respondent's exception was still pending before the
 Authority.  The General Counsel further contends that the Respondent's
 refusal to comply with the award when the Authority denied its exception
 constituted a violation of the Statute.  The Union similarly contends
 that the Respondent violated the Statute.
 
    The National Guard Bureau on behalf of the Respondent contends that
 there was no obligation under the Statute that the Respondent comply
 with the arbitration award during the pendency of its exception to the
 award before the Authority notwithstanding the denial of its stay
 request.  The Bureau argues that the Authority should maintain the
 interpretation of the Statute set forth in Soldiers' and Airmen's Home,
 15 FLRA 139 (1984), that was reversed by the court in AFGE Local 3090,
 and should not adopt the reasoning and conclusions of the court.  The
 Bureau further maintains that the award is contrary to law.
 Consequently, the Bureau contends that the Respondent was not and is not
 obligated to comply with the illegal award and that the complaint should
 be dismissed.
 
                       IV.  Analysis and Conclusions
 
    We conclude that the Respondent violated the Statute by failing and
 refusing to comply with the award of Arbitrator James A. Evenson, dated
 January 15, 1986, when the Authority denied its stay request and further
 violated the Statute by failing and refusing to comply with award when
 the Authority denied its exception.
 
                        A.  Denial of stay request
 
    In AFGE Local 3090 the court concluded that the language and
 legislative history of the Statute was ambiguous as to whether an
 arbitration award as to which timely exceptions have been filed is final
 and binding for compliance purposes while exceptions are pending.  The
 court found, however, that section 2429.8 of the Authority's Rules and
 Regulations, which at that time provided for stays of arbitration
 awards, demonstrated an "implicit premise" that the Authority viewed the
 Statute as requiring the unsuccessful party in an arbitration proceeding
 to secure a stay of the award to avoid being bound by it while
 exceptions were pending.  777 F.2d at 757.  Accordingly, the court
 concluded that the Authority's interpretation of the Statute in
 Soldiers' and Airmen's Home, to find that an arbitration award as to
 which timely exceptions have been filed is not final and binding under
 section 7122(b), could not be enforced until such time as the
 Authority's stay regulation had been withdrawn by rulemaking.  777 F.2d
 at 759.  In a supplemental decision and order, we accepted the court's
 opinion as the law of the case.  Effective December 31, 1986, section
 2429.8 of our rules was revoked.  51 Fed. Reg. 45755 (1986).  We
 reiterated our view of the Statute that when timely exceptions are filed
 with the Authority, the award is not final and binding for compliance
 purposes until the Authority resolves the exception, and we indicated
 our intent consistent with AFGE Local 3090 to apply that view of the
 Statute to cases arising after the removal of the stay regulation from
 our rules.
 
    Based on the reasoning and conclusions of the court in AFGE Local
 3090, and noting in particular that the events in this case took place
 before the stay regulation was removed, we conclude that once the
 Respondent was unable to secure a stay of the arbitration award, the
 Respondent was obligated to comply with the award while its exception
 was pending.  Accordingly, the Respondent's failure and refusal to
 comply with the award when its stay request was denied violated the
 Statute.
 
                          B.  Denial of exception
 
    It is well established that a party to an arbitrator's award must
 comply with the award when timely filed exceptions to the award have
 been denied by the Authority and that the failure or refusal to comply
 with such an award constitutes an violation of section 7116(a)(1) and
 (8) of the Statute.  For example, American Federation of Government
 Employees, Local 3511, AFL-CIO, 23 FLRA No. 77 (1986) (and cases cited
 in the decision).  In these cases, the issue is simply whether the award
 has been complied with when the exceptions are denied.  The Authority
 will not relitigate in the unfair labor practice proceeding the denial
 of the exceptions or the propriety of the award on grounds not raised in
 the exceptions.  AFGE Local 3511 Department of the Treasury, United
 States Customs Service, New York Region, New York, New York, 21 FLRA No.
 119 (1986).  The case of Office of Personnel Management, 17 FLRA 21
 (1985), cited by the Respondent, does not provide otherwise.  The
 complaint in OPM, alleging a failure to comply with an arbitration award
 as to which exceptions were denied by the Authority, was dismissed
 because during the course of the unfair labor practice proceeding the
 Authority adopted the reasoning and conclusions of a court decision
 concerning the type of matter that had been in dispute before the
 arbitrator and concluded that previous decisions of the Authority,
 including the decision denying OPM's exceptions to the arbitration
 award, would no longer be followed.  17 FLRA at 22.
 
    In this case there is no question as to whether the Respondent has
 complied with the award;  it admits that it has not.  Therefore, under
 established precedent the Respondent's failure and refusal to comply
 with the award constitutes a violation of section 7116(a)(1) and (8) of
 the Statute.
 
                                C.  Remedy
 
    As to an approporiate remedy, the Union argues that in order to make
 affected unit employees whole for the Respondent's violations of the
 Statute in failing to comply with the Arbitrator's award, the Authority
 should order that on expiration of the collective bargaining agreement,
 civilian technicians be permitted the option of wearing standard
 civilian attire instead of the military uniform for a period of time
 equal to the period of time during which the Respondent unlawfully
 refused to comply with the award.  We agree that such a remedy is
 necessary to make employees whole for the violations of the Statute and
 to effectuate the purposes and policies of the Statute.  As to the
 Union's request for a nationwide posting, we find that the violations of
 the Statute were those of the Respondent Wyoming Air National Guard,
 alone, and we will not order a nationwide posting of the Notice which
 follows at all Air National Guard installations.
 
                               V.  Decision
 
    We sustain the allegations of the complaints that the Respondent
 violated section 7116(a)(1) and (8) of the Statute by failing and
 refusing to comply with the award of Arbitrator Evenson when its stay
 request was denied and when its exception to the award was denied.  To
 remedy these violations, we issue the following Order.
 
                                VI.  Order
 
    Pursuant to section 2423.29 of our rules and section 7118 of the
 Statute, we order that the Wyoming Air National Guard, Cheyenne, Wyoming
 shall:
 
    1.  Cease and desist from:
 
          (a) Failing to comply with the provisions of section 7122(b) of
       the Statute by refusing and failing to implement Arbitrator
       Evenson's January 15, 1986 award when pursuant to section 2429.8
       of the Authority's Rules and Regulations, the Authority on April
       15, 1986, denied its stay request of that award.
 
          (b) Failing to comply with the provisions of section 7122(b) of
       the Statute by refusing and failing to implement Arbitrator's
       Evenson's January 15, 1986 award when the Authority on August 18,
       1986, denied its exception to that award in Wyoming Air National
       Guard (WANG) and National Association of Government Employees
       (NAGE), Local No. 14-76, 23 FLRA No. 33 (1986).
 
          (c) In any like or related manner, interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Comply fully with the award of Arbitrator Evenson dated
       January 15, 1986.
 
          (b) On expiration of the parties' collective bargaining
       agreement (or on receipt of this Order if the agreement has
       already expired according to the terms of the Arbitrator's award),
       provide civilian technicians the option when performing technician
       duties of wearing either the the appropriate military uniform or
       standard civilian attire approved by the Adjutant General for a
       period of time equal to the period of time from April 15, 1986
       (when the stay request was denied) to the date of this Order or
       when the contract expired, whichever comes first.  On the
       expiration of this period of time, the wearing of the military
       uniform by technicians while performing technician duties will be
       governed by the parties' collective bargaining agreement or by
       agency regulation, as appropriate.
 
          (c) Post at its facilities where bargaining-unit employees are
       located, copies of the attached Notice on forms to be furnished by
       the Federal Labor Relations Authority.  Such forms shall be signed
       by a senior official of the Wyoming Air National Guard, and shall
       be posted and maintained for 60 consecutive days after posting, 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.
 
          (d) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region VII, 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., June 25, 1987.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) We grant the General Counsel's motion to consolidate these two
 cases.
 
    (2) The Respondent has submitted a motion to file an amended answer
 in 7-CA-70006 stating that as a result of a clerical error, its original
 answer admitted the alleged violations of the Statute.  The amended
 answer denies the allegation.  We grant the motion and also deny the
 Charging Party's motion to strike portions of the brief filed by the
 National Guard Bureau incorporating the amendment.  Because the briefs
 of the National Guard Bureau have been filed on behalf of the Respondent
 and the Respondent's brief in 7-CA-60326 was withdrawn, we deny the
 General Counsel's motion to strike the briefs filed by the National
 Guard Bureau.  Finally, in resolving these types of cases, we only
 consider facts contained in the stipulation.  Accordingly, we find that
 the motions of the General Counsel and the Charging Party to strike
 portions of the National Guard Bureau's brief in 7-CA-70006 as allegedly
 containing factual material not included in the stipulation are
 unnecessary and they are denied.
 
 
 
 
 
 
 
 
 NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE
 
                      WE NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail to comply with the provisions of section 7122(b) of
 the Statute by refusing and failing to implement Arbitrator Evenson's
 January 15, 1986 award when pursuant to section 2429.8 of the
 Authority's Rules and Regulations, the Authority on April 15, 1986,
 denied our stay request of that award and when the Authority on August
 18, 1986, denied our exception to that award in Wyoming Air National
 Guard (WANG) National Association of Government Employees (NAGE), Local
 No. 14-76, 23 FLRA No. 33 (1986).
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of rights assured them by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL comply fully with the award of Arbitrator Evenson dated
 January 15, 1986.
 
    WE WILL on expiration of our collective bargaining agreement (or
 beginning on the date we received the Order of the Authority in this
 case, if the agreement has already expired), provide civilian
 technicians the option when performing technician duties of wearing
 either the appropriate military uniform or standard civilian attire
 approved by the Adjutant General for a period of time equal to the
 period of time from April 15, 1986, to date of the Authority's Order in
 this case or when the contract expired, whichever comes first.
                                       . . . (Activity)
 
    Dated:  . . . By:  . . . (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, def