27:0835(91)CA AFGE VS VA MEDICAL CENTER -- 1987 FLRAdec CA


[ v27 p835 ]
27:0835(91)CA
The decision of the Authority follows:


27 FLRA NO. 91

VETERANS ADMINISTRATION CENTRAL
OFFICE, WASHINGTON, D.C.

        and

VETERANS ADMINISTRATION MEDICAL
AND REGIONAL OFFICE CENTER
FARGO, NORTH DAKOTA

             Respondents

        and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
WASHINGTON, D.C.

             Charging Party

Case No. 7-CA-60189

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on an exception filed by the Respondents to the decision of the Administrative Law Judge. The complaint alleged that the Respondents violated section 7116(a)(1) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to comply with an award of an arbitrator. For the reasons discussed below, we will dismiss the complaint.

II. Background

The grievant was a staff nurse at the Veterans Administration (VA) Fargo facility appointed under the provisions of title 38 of the United States Code, Chapter 73. She was charged with certain alleged misconduct which a Board of Investigation (BOI) was appointed to investigate. Based on the BOI's recommendation, the facility director recommended that the grievant be removed. The Union filed a grievance on her behalf under the negotiated grievance procedure. The grievant also requested a hearing before a Disciplinary Board under the provisions of 38 U.S.C. 4110. That hearing was held on October 23-24, 1984. On May 20, 1985, Arbitrator John J. Flagler held a hearing on the grievance, notwithstanding the Agency's argument that he lacked jurisdiction over disciplinary matters covered by 38 U.S.C. 4110. Meanwhile, the grievant was discharged from the service effective June 30, 1985, based on the recommendation of the Disciplinary Board.

On August 20, 1985, Arbitrator Flagler issued an award in which he asserted jurisdiction over the grievance. The Arbitrator found that the BOI had committed procedural errors and that the decision of the Disciplinary Board to remove the grievant was therefore defective. He ordered that the grievant be reinstated with backpay and that either the charges against her be dropped or that a new BOI be established.

The Respondents filed an exception to the award with the Authority. The Authority dismissed the exception because the dispute and award related to the grievant's removal for professional misconduct, which was a matter similar to those covered under 5 U.S.C. 7512 and which had arisen under another personnel system within the meaning of section 7121(f) of the Statute. Veterans Administration Medical Center, Fargo, North Dakota and American Federation of Government Employees, AFL - CIO, Local 3884, Fargo, North Dakota, 20 FLRA 854 (1985).

Thereafter, the General Counsel issued a complaint alleging that the Respondents had improperly refused to comply with the Arbitrator's award.

III. Administrative Law Judge's Decision

The Judge noted that the Respondents did not seek judicial review of the Arbitrator's award. He held that the award became final and binding since the Respondents did not seek judicial review. He also found that the Respondents failed and refused to comply with the final award.

Addressing the matter of noncompliance with final arbitration awards involving section 7121(f), the Judge cited United States Army Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA No. 20 (1986). In that case, the Authority held that it had jurisdiction to order compliance with an arbitrator's award on a section 7121(f) matter which became final and binding when no timely request for judicial review was filed by the Office of Personnel Management (OPM) under 5 U.S.C. 7703(d). The Judge held, notwithstanding the Respondents' argument that judicial review was not available in this case either to them or to OPM, that "although the matter is not free from doubt, the (Respondents), and possibly OPM, appear to have the same rights to judicial review as would be available to the employee." ALJ Decision at 6.

The Judge held that the Respondents' improper filing of an exception with the Authority, which was dismissed in VAMC, Fargo, 20 FLRA 854 (1985), "did not obviate the necessity of obtaining judicial review to defer the finality of the award." ALJ Decision at 7. The Judge also took note of the Respondents' argument that the arbitration proceeding and award were contrary to the provisions of 38 U.S.C. 4110 and that the Arbitrator lacked jurisdiction in the matter. However, he declined to respond to that argument because the Respondents had failed to use the appropriate mechanism to appeal the award.

The Judge concluded that the Respondents' refusal to comply with the Arbitrator's final and binding award was a violation of section 7116(a)(1) and (8) of the Statute, and he granted the General Counsel's motion for summary judgment. To remedy the violation, he recommended that the Respondents be ordered to comply with the award.

IV. Position of the Agency

The Respondents contend that the Judge improperly ignored their argument that the Arbitrator's award was contrary to the exclusive disciplinary procedures contained in 38 U.S.C. 4110. The Respondents also contend that the Judge's ruling that section 7121(f) provides for judicial review of the award is erroneous and is not based in law. The Respondents argue that neither section 7121(f) of the Statute nor any other law would permit either the Respondents or OPM to file for judicial review of an arbitrator's award which arises under 38 U.S.C. 4110.

In this regard, the Respondents contend that the right of employees to seek judicial review of adverse administrative actions comes under the Administrative Procedure Act, 5 U.S.C. 701 et seq., which does not grant the same type of relief to agencies. The Respondents challenge the Judge's reliance on Adjutant General Publications Center, 22 FLRA No. 20, because that decision concerned title 5 employees, not title 38 employees, and because 5 U.S.C. 7703 specifically provides that OPM may seek review of Merit Systems Protection Board decisions while there is no similar provision for the VA or OPM to seek judicial review of an arbitrator's award concerning disciplinary matters related to professional medical employees of the VA.

Neither the General Counsel nor the Union filed an opposition to the Respondents' exceptions.

V. Analysis

It is well established that agencies are required to implement validly obtained arbitration awards which become "final and binding" within the meaning of section 7122(b) of the Statute. See, for example, United States Department of Justice Bureau of Prisons v. FLRA, 792 F.2d 25 (1986).

Arbitration awards become "final and binding" either when no timely exceptions are filed under section 7122(a) of the Statute or when timely filed exceptions are denied by the Authority. Id. Thus, the Authority rejected a respondent's defense in an unfair labor practice proceeding that compliance with an arbitration award would require an unlawful act because the Authority concluded that any failure to comply with a validly obtained arbitrator's award to which no exceptions were timely filed constituted a failure to comply with the requirements of section 7122 of the Statute in violation of section 7116(a)(1) and (8). Department of Defense, Department of the Navy, United States Marine Corps, United States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA 686 (1984).

However, where an arbitrator's award involves a matter such as a removal, covered by section 7121(f) of the Statute, the parties to the award are precluded by section 7122(a) from filing exceptions to the award with the Authority. It was on this basis that the Authority dismissed the Agency's exceptions in VAMC, Fargo, 20 FLRA 854. In that decision the sole question concerned the Authority's jurisdiction to consider the merits of an award involving a matter under section 7121(f). The present unfair labor practice proceeding concerns the matter of compliance with the award.

The Authority fully discussed the application of section 7121(f) in Adjutant General Publications Center, and particularly addressed the matter of compliance with arbitration awards over which it has no jurisdiction under that section. The Authority concluded that once those awards become final and binding because no exceptions are filed under section 7122(b) or because judicial review is not sought in section 7121(f) matters, those awards are enforceable without regard to the merits. See also United States Department of Justice, Bureau of Prisons, Washington, D.C. and Bureau of Prisons, Federal Correctional Institution, Ray Brook, New York, 22 FLRA No. 95 (1986), enforced mem. sub nom. Department of Justice v. FLRA, No. 86-4133 (2d Cir. April 22, 1987) (in which the Authority held that the agency committed unfair labor practices by failing to comply with a final and binding arbitration award concerning a matter covered under section 7121(f) for which judicial review was available but not sought).

However, 38 U.S.C. 4119, enacted in 1980, provides that no provision of title 5 which is "inconsistent" with a provision of title 38 "shall be considered to supersede, override or otherwise modify" the title 38 provision unless title 5 specifically so provides. The grievance and award in this case concerned the removal of a nurse in VA's Department of Medicine and Surgery (DM&S) for alleged misconduct under the procedures of 38 U.S.C. 4110. It is well established that those procedures are the exclusive procedures available to title 38 employees for handling disputes regarding discipline for alleged professional misconduct. See Veterans Administration Medical Center, Minneapolis v. FLRA, 705 F.2d 953 (8th Cir. 1983); Veterans Administration Medical Center, Northport v. FLRA, 732 F.2d 1128 (2d Cir. 1984).

In VA Medical Center, Minneapolis, 705 F.2d at 956, the court held, based on the legislative history of section 4110, that "Congress intended disciplinary review by 'peer' boards with ultimate decision by the Administrator to be exclusive insofar as it concerned 'inaptitude, inefficiency, or misconduct' of DM&S professionals." The court also particularly addressed the possible conflict between the provisions of title 5 and title 38 and stated:

Further action by Congress, however, prevents us from thus recognizing that the Civil Service Reform Act superseded by implication the DM&S disciplinary procedures created by section 4110 of the Veterans Administration law. In 1980, Congress amended the veterans Administration law to provide that '(n)otwithstanding any other provision, no provisions of title 5 or any other law pertaining to the civil service system which is inconsistent with any other provision of this subchapter shall be considered to supersede, override, or otherwise modify' the Veterans Administration law unless the other law specifically refers to such change. 38 U.S.C. 4119 (Supp. IV 1980). Based on the express language of the amendment, therefore, we must resolve any conflict between section 4110 and the duty to bargain under section 7121 of the Civil Service Reform Act in favor of the continued applicability of the Veterans Administration law.

Id. at 958.

In light of the above rulings as to the precedence of 38 U.S.C. 4110 over 5 U.S.C. 7121, we find that the Arbitrator's award in this case cannot be enforced. The award ordering the grievant to be reinstated with backpay would negate the final decision of the Administrator of the Veterans Administration to remove the grievant for professional misconduct. For the Authority to find a violation and order the Agency to comply with the award under the unfair labor practice provisions of section 7116(a) of the Statute would be to apply the Statute so as to supersede or override the provisions of 38 U.S.C. 4110. Such a result is barred by 38 U.S.C. 4119. We conclude that there is no basis under the Statute for enforcing compliance with the award.

Our decision in this case focuses on limits the Authority must observe in applying the unfair labor practice provisions of the Statute. It does not affect in any way our precedent holding that in unfair labor practice proceedings, we will not examine the merits of validly obtained arbitration awards to which timely exceptions are not filed under section 7122(a) or for which judicial review is available but not sought under section 7121(f). Under our case law, we will enforce compliance with those awards in such proceedings.

VI. Conclusion

The Respondents' refusal to comply with the award did not violate section 7116(a)(1) and (8) of the Statute. Accordingly, the complaint shall be dismissed in its entirety. 

ORDER

The complaint in Case No. 7-CA-60189 is dismissed.

Issued, Washington, D.C., June 26, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

VETERANS ADMINISTRATION CENTRAL OFFICE,
WASHINGTON, D.C.

    and

VETERANS ADMINISTRATION MEDICAL AND
REGIONAL OFFICE CENTER,
FARGO, NORTH DAKOTA

    and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, WASHINGTON, D.C.

Case No. 7-CA-60189

Andree A. Boudreaux, Esquire
         For the Respondents

Matthew L. Jarvinen, Esquire
         For the General Counsel

Before:  RANDOLPH D. MASON
         Administrative Law Judge

DECISION

Statement of the Case

This proceeding was initiated under the Federal Service Labor - Management Relations statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq. Pursuant to a charge filed by the American Federation of Government Employees, AFL - CIO, Washington, D.C., the General Counsel of the Federal Labor Relations Authority issued a Complaint and Notice of Hearing on April 28, 1986, alleging that Respondents violated sections 7116(a)(1) and (8) of the Statute by refusing to comply with the award of an arbitrator which had become final. Although  Respondents deny any violation of the statute in the Answer to complaint, all of the material facts are admitted. Thereafter, the General Counsel filed a motion for Summary Judgment on July 3, 1986, and Respondents flied a motion in Opposition and a Cross Motion for Summary Judgment on July 25, 1986.

The undersigned was selected by the Office of Personnel Management to conduct this proceeding under the authority of 5 U.S.C. 3344 and 5 CFR 930.213. After consideration of the entire record, including the pleadings, briefs, documentary evidence, admissions, and stipulations of the parties, I hereby grant the General Counsel's Motion for Summary Judgment, deny Respondents' motions, and make the following findings of fact, conclusions of law, and recommended order:

Findings of Fact

1. At all times material herein, the American Federation of Government Employees, AFL - CIO, Washington, D.C., ("Union") has been the exclusive representative of a national consolidated unit of professional employees which includes, inter alia, all registered nurses employed by the veterans Administration Medical Center, Fargo, North Dakota.

2. Prior to February 21, 1984, Grace R. Kain worked as a staff nurse at the Fargo facility. As a registered nurse in the Agency's Department of Medicine & Surgery she had been appointed under the statutory provisions covering health care professional employees engaged in direct patient care, 38 U.S.C. chapter 73. On that date, the Center Director appointed a Board of Investigation to inquire into certain alleged misconduct by Ms. Kain. She was reassigned to the Escort Service pending the outcome of the investigation. In accordance with the Board's March 1, 1984 report, the Director recommended her removal.

3. On May 11, 1984, the Union filed a grievance under the negotiated procedure on behalf of Ms. Kain alleging that management (1) unduly delayed seating the Board or exonerating Ms. Kain, (2) prevented Ms. Kain from fully practicing her profession, (3) damaged her reputation as a nurse, and (4) treated her case differently from previous cases. The Union "requested that she be returned to her position as a registered nurse and be made whole with regard to her lost shift and weekend differential.

4. On July 5, 1984, the Associate Deputy Chief Medical Director issued a letter of proposed discharge to Ms. Kain based upon evidence obtained by the Board of Investigation. 

After describing the alleged evidence of misconduct, the letter informed her of tier right to a hearing before a Disciplinary Board under 38 U.S.C. 4110 before any decision to discharge would be made by the Chief medical Director. Ms. Kain formally requested a hearing by the Disciplinary Board on July 23, 1984, and the nearing was held on October 23-24, 1984.

5. On May 20, 1985, while the parties were awaiting a decision by the Disciplinary Board, Arbitrator John J. Flagler held a hearing on the grievance. The Agency argued that the Arbitrator lacked jurisdiction because 38 U.S.C. 4110 establishes a peer review disciplinary board as the exclusive method of handling disciplinary matters. The Union argued that the Arbitrator had jurisdiction over grievances arising out of the Agency's alleged failure to comply with its own disciplinary procedures.

6. On June 14, 1985, the Chief Medical Director issued a letter of discharge to Ms. Kain effective June 30, 1985, based on the recommendations of the Disciplinary Board. He informed her of her right to appeal this decision to the Administrator.

7. Subsequently, the Union introduced the transcript of the Disciplinary Board hearing, and the Board's decision, into evidence in the arbitration proceeding as further evidence of the Agency's alleged failure to comply with its own disciplinary procedures.

8. On August 20, 1985, the Arbitrator issued his award (Respondents' Exh. M, pp.21-22). (The "August 19" date on the first page is a typographical error in view of the handwritten date on page 22). (The on page 22). He found that he had jurisdiction over the grievance arising out of the failure of the Board of Investigation to comply with the Agency's procedural requirements. In particular, he noted that the Board failed to timely and fairly hear the testimony of Ms. Kain and her witnesses. He held that the Agency's failure to comply with its regulations constituted a denial of due process, that these detects were not cured by the Disciplinary Board, and that these harmful errors deprived the Disciplinary Board of jurisdiction. He ordered that Ms. Kain should be reinstated with back pay and directed that the Agency either drop the charges against Ms. Kain or reconstitute another Board of Investigation composed of new members.

9. On September 18, 1986, the Agency filed an exception to the Arbitrator's award with the Authority under section 7122(a) of the Statute, arguing that the Arbitrator lacked jurisdiction because the disciplinary procedures of 38 U.S.C. 4110 preclude grievances over disciplinary actions taken in accordance with such procedures. The Authority held that the dispute and award related to the grievant's removal for professional misconduct, that it was similar to a matter arising under 5 U.S.C. 7512, and that it arose under another personnel system. Accordingly, it held that the award related to a matter described in section 7121(f) of the Statute and dismissed the exception on the ground that it lacked jurisdiction to review the award. Veterans Administration Medical center, Fargo, North Dakota, 20 FLRA No. 106 (December 13, 1985). Section 7121(f) provides, in part, that judicial review of this type of arbitrator's award may be obtained in the same manner and on the same basis as could be obtained of a final decision under the applicable appellate procedures.

10. Since Respondents did not promptly seek judicial review of the August 20, 1985 award of the arbitrator, it became final and binding. At all times material herein, Respondents nave failed and refused to comply with the final award.

Conclusions of Law

The primary issue for consideration is whether Respondents violated sections 7116(a)(1) and (8) of the Statute by failing to comply with an Arbitrator's award. Respondents argue that compliance was not required because the Arbitrator lacked jurisdiction since the award was contrary to the exclusive disciplinary procedure provided by 38 U.S.C. 4110. They also contend that the award never became final and binding due to the fact that the Authority dismissed rather than denied the Agency's appeal.

Section 7122(a) provides that either party to arbitration may file with the Authority exceptions to an arbitrator's award other than an award relating to a matter described in section 7121(f). If a party fails or refuses to comply with an arbitrator's award following the Authority's denial of exceptions filed under section 7122(a), or if no timely exceptions to such award are filed out either party thereafter fails or refuses to comply with the award, the Authority will find an unfair labor practice since the party has failed to comply with section 7122(b). The latter section provides that where no exception to the award is filed within 30 days, the award becomes final and binding, and the agency must take the actions required by the arbitrator's final award. A failure to comply under these circumstances constitutes a violation of sections 7116(a)(1) and (8) of the Statute. Department of Health and Human services, Region II, 15 FLRA 710 (1984); United States Marshals Service, 13 FLRA 351 (1983), enforced sub nom. United States Marshals Service v. FLRA, 778 F.2d 1432 (9th Cir. 1985).

As previously stated, section 7122(a) precludes Authority review of an arbitrator's award relating to a matter described in section 7121(f). The latter section provides as follows:

(f) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board. In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems ana which an aggrieved employee has raised under the negotiated grievance procedure, judicial review of an arbitrator's award may be obtained in the same manner and on the same oasis as could be obtained of a final decision in such matters raised under applicable appellate procedures.

The Authority recently held that it has jurisdiction over an unfair labor practice complaint for failure to comply with a final arbitrator's award involving an adverse action under section 7512, which is a matter described in the first sentence of section 7121(f). United States Army Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA No. 20 (1986). In that case, the Authority noted that although section 7703 does not permit the agency to obtain judicial review, it does provide for the Director of the Office of Personnel Management to obtain such review under certain limited circumstances by filing a petition within 30 days with the U.S. Court of Appeals for the Federal Circuit. The Authority held that since the Director of OPM failed to file a timely petition for review, the award became final and binding, and the agency's noncompliance constituted an unfair labor practice. Id.

Instead of attempting to obtain judicial review of the instant Arbitrator's award, Respondents filed exceptions with the Authority. In dismissing Respondents' exceptions for lack of jurisdiction, the Authority held that the award in question relates to matters "similar to those covered under . . . section 7512 . . . which arise under other personnel systems" within the meaning of the second sentence of section 7121(f). Veterans Administration Medical Center, Fargo, North Dakota, 20 FLRA 106 (1985).

Respondents contend that the Statute does not make judicial review of the instant award available to either OPM or the Agency. The second sentence of section 7121(f) provides, in pertinent part, that judicial review of this type of award "may be obtained in the same manner and on the same oasis as could be obtained of a final decision in such matters raised under applicable appellate procedures." It is clear that a professional employee of the Veterans Administration who receives an adverse personnel decision from the Administrator under the appellate procedures set forth in 38 U.S.C. 4110 may obtain judicial review by the federal courts. See, e.g. Moore v. Custis, 736 F.2d 1260 (8th Cir. 1984); Gilbert v. Johnson, 601 F.2d 761 (5th Cir. 1979), cert. den. 445 U.S. 961 (1980). Since the Administrator would not appeal his own decision, the question remains whether Congress intended in section 7121(f) to give either OPM or the Agency an opportunity to obtain judicial review of an adverse decision by an arbitrator which the Agency considers to be contrary to law.

The legislative history of the second sentence of section 7121(f) indicates that this section "provides for judicial review . . . in the same manner and on the same basis as would be available to an employee who had not used the negotiated grievance procedure to appeal the matter." S. Rep. No. 969, 95th Cong., 2d Sess. 111 (1978). Accordingly, although the matter is not free from doubt, the Agency, and possibly OPM, appear to have the same rights to judicial review as would be available to the employee. Further, it is unlikely that Congress would not nave provided the agency with an opportunity for judicial review where it is contended that the arbitrator lacks jurisdiction and that the award is contrary to law. Although the law does not require the performance of a futile act, here it is probable that the federal court would have taken jurisdiction. Instead of promptly pursuing this statutory avenue of review, Respondents chose to ignore it.

Respondents also argue that they are not required to comply with the Arbitrator's award because their exceptions to this award were dismissed rather than denied by the Authority in Veterans Administration Medical Center, Fargo, North Dakota, 20 FLRA No. 106 (1985). On that ground, they argue that the award did not become final and binding. This argument is also rejected. The Respondents' improper appeal to the Authority under section 7122(a), which specifically precludes section 7121(f) matters, did not obviate the necessity of obtaining judicial review to defer the finality of the award. The Authority has held that an award subject to the review procedures of section 7121(f) becomes final and binding when judicial review is not timely obtained, and noncompliance with the award constitutes an unfair labor practice. United States Army Adjutant General Publications Center, St. Louis, Missouri, supra.

Finally, Respondents contend that the arbitration proceeding and the award of the Arbitrator are contrary to the exclusive disciplinary procedures under 38 U.S.C. 4110 for professional employees of the Respondents' Department of Medicine & Surgery, and that the Arbitrator lacked jurisdiction for the same reason. I am constrained to ignore this defense in the instant proceeding. When a party has failed to utilize the appropriate mechanism for appealing an arbitrator's award, it may not defend its failure to implement the award in a subsequent unfair labor practice proceeding by arguing that the award was contrary to law, rule, or regulation. Consideration of Respondents' arguments would not only circumvent the statutory appeal procedure under section 7121(f), but would frustrate Congressional intent with respect to the finality of the award. Department of Defense, Department of the Navy, United States Marine Corps, united states Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA 686 (1984); United States Army Adjutant General Publications Center, St. Louis, Missouri, supra. As the Authority noted in Cherry Point, supra, if a party were allowed to ignore the appropriate review procedure and wait until the unfair labor practice proceeding to raise its defense, the resulting protracted procedure would be inconsistent with the policy requiring expeditious and final resolution of grievances.

It is concluded that Respondents' refusal to comply with the final and binding award of Arbitrator Flagler dated August 20, 1985, interferes with, restrains ana coerces bargaining unit employees in the exercise of their rights established under the Statute in violation of section 7116(a)(1). In this regard, an employee's right to file and process grievances under a collective bargaining agreement is protected activity within the meaning of section 7102, and the agency's failure to comply with the award prevents an employee from exercising such protected activity. United States Army Adjutant General Publications Center, St. Louis, Missouri, supra.

Respondents' conduct also constitutes a violation of section 7116(a)(8) of the Statute, which makes it an unfair labor practice for an agency to fail or refuse to comply with any provision of the statute. In this regard, Respondents nave refused to comply with section 7122(b), which provides, in part, that "(a)n agency shall take the actions required by an arbitrator's final award."

Accordingly, having found that Respondents violated sections 7116(a)(1) and (8) of the Statute by their failure to comply with the Arbitrator's award, it is recommended that the Authority adopt 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 Veterans Administration Central Office, Washington, D.C., and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, shall:

1. Cease and desist from:

(a) Failing and refusing to fully implement Arbitrator John J. Flagler's arbitration award rendered on August 20, 1985.

(b) In any like or related manner interfering with, 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 purpose ana policies of the Statute:

(a) Fully comply with Arbitrator John J. Flagler's August 20, 1985, arbitration award.

(b) Post at all facilities of Veterans Administration Central Office, Washington, D.C., and Veterans Administration Medical and Regional Office center, Fargo, North Dakota, 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 Chief Medical Director, Department of Medicine & Surgery, Washington, D.C., or his 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 of the bargaining unit represented by the American Federation of Government Employees, AFL - CIO, 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 of Region VIII Federal Labor Relations Authority, 535 16th Street, Suite 310, Denver, CO, 80202, in writing, within 30 days of the date of this Order as to what steps have been taken to comply herewith.

Randolph D. Mason
Administrative Law Judge

Dated: October 22, 1986
       Washington, D.C.

                     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 fully implement Arbitrator John J. Flagler's arbitration award rendered on August 20, 1985.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL fully comply with Arbitrator John J. Flagler's August 20, 1985 arbitration award.