35:0491(58)CA - - HHS, Health Care Financing Administration and AFGE Local 1923 - - 1990 FLRAdec CA - - v35 p491



[ v35 p491 ]
35:0491(58)CA
The decision of the Authority follows:


35 FLRA No. 58

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

HEALTH CARE FINANCING ADMINISTRATION

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Charging Party)

3-CA-90094

DECISION AND ORDER

April 10, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts by the parties. The General Counsel filed a memorandum and the Respondent (the Agency) filed a brief with the Authority.

The complaint alleges that the Respondent failed and refused to comply with the provisions of section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and thereby violated section 7116(a)(1) and (8) of the Statute by failing and refusing to comply with an arbitration award after the Respondent's exceptions to the arbitration award were denied by the Authority.

II. Background

As stipulated by the parties, in November and December 1987, the Agency and the Charging Party (the Union) participated in an arbitration proceeding before Arbitrator Alfred Avins concerning the Agency's failure to select a unit employee for a promotion to a GS-13 Program Issuance Specialist position. On March 9, 1988, the Arbitrator issued an arbitration award finding that the Agency violated the collective bargaining agreement by failing to notify the grievant of her entitlement to priority consideration for a vacancy for which she was not selected. The Arbitrator ordered that the grievant be promoted to GS-13 as soon as an appropriate vacancy occurs in the Agency. On request of the Union, in a Supplemental Memorandum issued on March 30, 1988, the Arbitrator clarified the award to restate the findings on which he based the award of a promotion. In the Supplemental Memorandum clarifying his award, the Arbitrator stated that, but for the Agency's failure to issue the notification required by the parties' collective bargaining agreement, the grievant would have received the promotion.

The Agency filed exceptions to the Arbitrator's award with the Authority. On October 14, 1988, the Authority denied the Agency's exceptions to the award in its decision in American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88 (1988) (Health Care Financing Administration). The Authority determined that the Agency failed to establish that the central fact underlying the Arbitrator's finding, that the Agency violated the collective bargaining agreement, was erroneous and that, but for the erroneous finding, the Arbitrator would have reached a different result. The Authority also determined that the Agency failed to establish that either the award or the award as clarified by the Arbitrator was contrary to law or regulation. The Authority concluded that, in both the original award and the award as clarified, the Arbitrator made the findings necessary to award a prospective promotion consistent with management's right to make selections for appointments under section 7106(a)(2)(C) of the Statute and Federal Personnel Manual chapter 335, subchapter 1-4, Requirement 4.

On October 31, 1988, the Agency filed with the Authority a request for reconsideration of the Authority's decision in Health Care Financing Administration and a request for a stay of the underlying Arbitrator's award. On January 12, 1990, the Authority issued an Order denying the Agency's requests. 34 FLRA 301 (1990).

Since on or about October 25, 1988, the Agency has failed to comply with the Arbitrator's award by failing to promote the unit employee to an available position even though one was available.

III. Positions of the Parties

The General Counsel contends that the Respondent's admitted refusal to comply with the arbitration award is contrary to the provisions of section 7122 of the Statute and therefore constitutes a violation of section 7116(a)(1) and (8). The General Counsel argues that the Respondent's reliance upon its requests for reconsideration of the Authority's decision and stay of the award as a defense for its admitted noncompliance here is misplaced. The General Counsel points out that section 2429.17 of the Authority's Rules and Regulations provides that the filing and pendency of a request for reconsideration does not operate to stay the effectiveness of the Authority's action unless ordered by the Authority. The General Counsel argues that the Authority did not stay the effectiveness of its decision in Health Care Financing Administration. Consequently, the General Counsel maintains that the Respondent was obligated to comply with the Arbitrator's award.

Based on the content of the complaint issued by the General Counsel in this case, the Respondent argues that, as there has been no showing in the stipulated record of its failure to comply with section 7122(a) of the Statute as alleged by the General Counsel, it has not committed an unfair labor practice. Although the Respondent admits it has not implemented the Arbitrator's award, it contends that this action relates to section 7122(b) and does not constitute a failure or refusal to comply with the provisions of section 7122(a) that relate solely to the review of the arbitration award. The Respondent also argues that in the absence of the Authority's decision on its request for a stay of the award, which accompanied its request for reconsideration, the Arbitrator's award should not be considered final under section 7122(b). Consequently, the Respondent maintains that no obligation arose under the Statute to comply with the award until such time as the Authority denied the Respondent's requests for reconsideration and a stay of the award.

IV. Analysis and Conclusions

We conclude that the Respondent violated the Statute by failing and refusing to comply with the award and supplemental memorandum of Arbitrator Alfred Avins, dated, respectively, March 9 and March 30, 1988.

A. The Complaint Is Sufficient In Breadth And Clarity To Encompass A Failure To Comply With Section 7122(b) Of The Statute

The General Counsel's failure in this case to specify a refusal to comply with section 7122(b), instead of section 7122(a) of the Statute, does not preclude the Authority from considering and deciding whether the Respondent committed an unfair labor practice in violation of section 7116(a)(1) and (8) when it refused to implement the Arbitrator's award. Both the complaint and the stipulation clearly describe the action that is alleged to be the basis for the unfair labor practice in this case: the Respondent's failure to comply with the Arbitrator's award. Further, the parties were fully aware of this alleged misconduct and have addressed the issue of the Agency's alleged misconduct in their submissions before the Authority.

The Authority has held that where both parties understood the subject of the dispute and, at the hearing, presented evidence and witnesses relevant to the issue of the dispute, a mere ambiguity in the language of the complaint does not remove the issue from being encompassed by the complaint. For example, U.S. Customs Service (Washington, D.C.); and U.S. Customs Service, Northeast Region (Boston, Massachusetts), 29 FLRA 891, 901 (1987) and cases cited therein. Moreover, in analogous situations arising under the National Labor Relations Act, 29 U.S.C. §§ 151 et seq., courts have indicated that the complaint is not to be judged by rigid pleading rules. Instead, its sole purpose is to put the employer on notice of the basis of the charges against it. See Industrial, Technical and Professional Employees Division, National Maritime Union of America, AFL-CIO v. NLRB, 683 F.2d 305, 308 (9th Cir. 1982); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1161 (5th Cir. 1977); Associated Home Builders of the Greater East Bay, Inc. v. NLRB, 352 F.2d 745, 753 n.13 (9th Cir. 1965). It is clear, in the present case, that the Respondent understood the issue in dispute and had an opportunity to, and did, present arguments concerning that issue. Based upon the foregoing, we find that the issue of the Respondent's failure to comply with the provisions of section 7122(b) by its actions in refusing to comply with the Arbitrator's award is properly before the Authority in this case.

B. The Respondent Violated Section 7116(a)(1) and (8) Of The Statute

The Authority has held that the language of section 7122(b) of the Statute makes it clear that an agency must take the action required by an arbitrator's award when that award becomes "final and binding." The award becomes "final and binding" when there are no timely exceptions filed to the award under section 7122(a) of the Statute, United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984), affirmed sub nom. Department of the Air Force v. FLRA, 775 F.2d 727, 733 (6th Cir. 1985), or when timely filed exceptions are denied by the Authority, Wyoming Air National Guard, Cheyenne, Wyoming, 27 FLRA 759 (1987); Department of the Treasury, United States Customs Service, New York Region, New York, New York, 21 FLRA 999 (1986); U.S. Department of Justice and Department of Justice, Bureau of Prisons (Washington, D.C.) and Federal Correctional Institution (Danbury, Connecticut), 20 FLRA 39 (1985), enforced sub nom. U.S. Department of Justice v. FLRA, 792 F.2d 25 (2d Cir. 1986); United States Marshals Service, 13 FLRA 351 (1983), affirmed sub nom. United States Marshals Service v. FLRA, 778 F.2d 1432 (9th Cir. 1985). As previously noted, the Authority denied the Agency's exceptions to the Arbitrator's award in Health Care Financing Administration, 33 FLRA 88. Consequently, we conclude that the award was final and binding and the Respondent was obligated under the Statute to comply with the Arbitrator's award during the pendency of its stay request before the Authority. This stay request accompanied a request for reconsideration of the Authority's decision.

The Agency concedes that it has failed to comply with the Arbitrator's award both in the Stipulation (Stip. No. 10(b)) and in its submissions to the Authority. We reject the Agency's attempts to rely on its requests for reconsideration and a stay of the Arbitrator's award as a defense for its noncompliance. Section 2429.17 of our regulations provides that the filing and pendency of a motion for reconsideration "shall not operate to stay the effectiveness of the action of the Authority, unless so ordered by the Authority." The Authority in its decision denying the Agency's exceptions to the Arbitrator's award never ordered a stay of the decision. 33 FLRA at 95. Furthermore, our regulations do not provide that a pending request for a stay of an arbitrator's award as to which the Authority has denied exceptions has the effect of suspending the finality of the Arbitrator's award. Rather, our regulations contemplate the finality of the Authority's action after a denial of exceptions because section 2429.17 provides that a motion for reconsideration need not be filed to exhaust administrative remedies. In our view, section 2429.17 supports the conclusion that a pending stay request has no effect on the finality of an award under section 7122(b) of the Statute. Moreover, this result promotes the essential underlying policy goal of arbitration, which is to permit a quick and definite resolution of grievances arising in the work place. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82 (1960); Wilko v. Swan, 346 U.S. 427, 431-32 (1953); Office of Supply v. New York Navigation Co., 469 F.2d 377, 379 (2d Cir. 1972) (private sector); United States Department of Justice v. FLRA, 792 F.2d 25, 29 (2d Cir. 1986); United States Marshals Service v. FLRA, 708 F.2d 1417, 1420 (9th Cir. 1983) (Federal sector).

Although a party is required to comply with an arbitration award to which the Authority has denied exceptions during the pendency of a request for reconsideration of that denial and a request for a stay, not every failure by a party to comply with an arbitration award during the pendency of such requests constitutes an unfair labor practice. The purpose and policies of the Statute are not effectuated by finding an unfair labor practice without regard to the Authority's decision on the request for reconsideration or the request for a stay. If the Authority subsequently reconsiders its decision and vacates that part of the arbitrator's award with which the party has failed or refused to comply, that party will not be found to have committed an unfair labor practice. Similarly, if the Authority grants a stay of its decision, finding that noncompliance during the pendency of the request was warranted, the party failing or refusing to comply also will not be found to have committed an unfair labor practice. However, a party that refuses to comply with an arbitration award during the pendency of such requests does so at its peril. If it refuses to comply and the Authority does not subsequently grant a stay or vacate the applicable aspects of the award, the refusal or failure to comply will constitute an unfair labor practice.

We find this approach supported by Office of Personnel Management, 17 FLRA 21 (1985). In OPM the complaint alleged a failure to comply with an arbitration award as to which exceptions had been denied by the Authority. The Authority dismissed the complaint 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. Id. at 22. See also Veterans Administration Central Office, Washington, D.C., 27 FLRA 835 (1987), enforced sub nom. American Federation of Government Employees v. FLRA, 850 F.2d 782 (D.C. Cir. 1988).

Moreover, this approach promotes the finality of arbitration awards as to which exceptions have been denied and gives employees the benefit of any relief obtained through arbitration without delay. At the same time, this approach takes into account the possibility that the Authority, on reconsideration, may vacate the action ordered by the arbitrator as to which noncompliance was charged or may grant a stay request. In such a case, although technically violative of the Statute, noncompliance would not be found to constitute an unfair labor practice.

In this case, the Authority denied the Agency's request for reconsideration and a stay of the award. As we have noted, a respondent acts at its own peril when it fails to comply with an arbitrator's award during the pendency of such requests. Consequently, we find that the Respondent's failure to comply with the Arbitrator's award since on or about October 25, 1988, is contrary to section 7122(b) and constitutes an unfair labor practice under section 7116(a)(1) and (8) of the Statute.

C. Remedy

To remedy the unfair labor practice in this case, we will order that the Respondent cease and desist from failing to comply with section 7122(b) of the Statute and from in any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Statute. We will also order that the Respondent comply fully with the March 9 award and March 30 Supplemental Memorandum of Arbitrator Avins, ordering that the grievant be promoted to GS-13.

It is also appropriate that we order an award of backpay, with interest, under the Back Pay Act, 5 U.S.C. § 5596. An award of backpay is appropriate here because the Respondent refused to comply with the Arbitrator's award, which required the Agency to promote the grievant to the next available position. The Agency admits that since on or about October 25, 1988, the grievant could have been promoted to an available position but that it refused to take such action. On these facts, it is clear that, but for the Agency's unjustified actions in failing to promote the employee, the grievant would not have suffered a withdrawal or reduction in pay, allowances or differentials. Under these circumstances, it is necessary to make the employee whole for the Agency's violations of the Statute and to effectuate the purposes and policies of the Statute. An award of backpay, with interest, is therefore appropriate, from the date that the grievant should have been promoted to an available position. See 5 U.S.C. § 5596(b); Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada, 33 FLRA 671, 680-81 (1988); U.S. Customs Service, Pacific Region, 32 FLRA 1141, 1149 (1988). The Respondent will be required to post a notice to employees that it will take these actions as ordered by the Authority.

V. Order

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, the Department of Health and Human Services, Health Care Financing Administration 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 Alfred Avins' March 9, 1988 award and March 30, 1988 Supplemental Memorandum after the Authority on October 14, 1988, denied its exceptions to that award in American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88 (1988).

(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Comply fully with the March 9 award and March 30 Supplemental Memorandum of Arbitrator Avins, ordering that the grievant Arjorie Chandler be promoted to GS-13.

(b) Provide backpay with interest to the grievant from the date that the grievant should have been promoted to an available position in accordance with the above arbitration award to the date she is promoted.

(c) Post at its facilities where bargaining unit employees represented by the American Federation of

Government Employees, Local 1923, are located, 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 Administrator of the Health Care Financing Administration and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure 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 III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.



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 provisions of section 7122(b) of the Statute by refusing and failing to implement Arbitrator Alfred Avins' March 9, 1988 award and March 30, 1988 Supplemental Memorandum after the Authority on October 14, 1988, denied our exceptions to that award in American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88 (1988).

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

WE WILL comply fully with the March 9 award and March 30 Supplemental Memorandum of Arbitrator Avins, ordering that the grievant Arjorie Chandler be promoted to GS-13.

WE WILL PROVIDE backpay with interest to the grievant from the date that she should have been promoted to an available position in accordance with the arbitration award to the date she is promoted.

____________________________
Administrator

Dated:____________ By:_____________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered,