39:0749(64)CA - - Customs Service, Washington, DC and NTEU - - 1991 FLRAdec CA - - v39 p749



[ v39 p749 ]
39:0749(64)CA
The decision of the Authority follows:


39 FLRA No. 64

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. CUSTOMS SERVICE

WASHINGTON, D.C.

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party/Union)

9-CA-90211

DECISION AND ORDER

February 22, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a Stipulation of Facts by the parties, who have agreed that no material issue of fact exists. The General Counsel, the Charging Party, and the Respondent filed briefs with the Authority. The General Counsel and the Charging Party both filed motions to strike portions of the Respondent's brief.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to abide by an arbitration award that clarified an earlier award regarding the grievant's removal.(1)

For the following reasons, we find that the Respondent violated section 7116(a)(1) and (8) of the Statute.

II. Facts

Based upon the parties' Stipulation of Facts, we make the following findings. On July 17, 1987, the Respondent removed the grievant from his position as a GS-9, step 5, Canine Enforcement Officer. The Charging Party invoked arbitration under the parties' agreement and the matter was heard before Arbitrator Leo Kanowitz on December 15, 1987.

On May 2, 1988, the Arbitrator issued his Opinion and Award. The Arbitrator found that the Respondent's removal of the grievant was not for such cause as would promote the efficiency of the service. Specifically, the Arbitrator found that Respondent failed to weigh the relevant factors under Douglas v. Veterans Administration, 5 MSPB 313 (1981). Arbitrator's Award at 24; Ex. 4.

Accordingly, the Arbitrator stated:

[M]y conclusion that the Agency failed to weigh the relevant factors has resulted, in the following section entitled "The Remedy," in my specifying how the [A]gency's decision should be corrected to bring the penalty within the parameters of reasonableness.

Id.

In the remedy section of his award, the Arbitrator concluded that some discipline was warranted and he directed the following:

Grievant shall be suspended without pay or other benefits for a period of 30 days, starting on July 17, 1987. On the 30th day following July 17, 1987, i.e., on August, 17, 1987, Grievant shall be demoted to the GS-7 grade, but otherwise be restored to the position and duties of a Canine Enforcement Officer.

From August 17, 1987 to the date of the Agency's compliance with this Award, Grievant shall receive all back pay, including overtime, that Grievant would have earned at the GS-7 grade from August 17, 1987 to the date of the Agency's compliance with the Award, and shall have restored all accrued sick leave and annual leave credits.

Id. at 26.

On May 4, 1988, the Office of Personnel Management (OPM) received a copy of the Arbitrator's award. OPM did not request judicial review of the Arbitrator's award in the U.S. Court of Appeals for the Federal Circuit on behalf of the Respondent within the required 30-day time limit or at any time thereafter.

On approximately July 5, 1988, the Respondent requested the Arbitrator to append an addendum to his award to order the grievant to resume outpatient counseling, as had been ordered by a state court. The Charging Party opposed the Respondent's request, arguing that the Arbitrator's "role in the case ended except with regard to such matters as clarifying [the] award or considering requests for attorney's fees." Ex. 7. On approximately July 18, 1988, the Respondent again requested an addendum to the award and, in the alternative, requested the Arbitrator to issue a "statement of the Arbitrator's concurrence with the Court's decision that this grievant participate in counseling." Ex. 8. The Charging Party again opposed the request for the previously mentioned reasons. On July 31, 1988, the Arbitrator denied the Respondent's requests, concluding that he was without jurisdiction to amend or append an addendum to the award, as requested by the Respondent. Ex. 10.

On July 11, 1988, without notifying the Charging Party, the Respondent reinstated the grievant at step 1 of the GS-7 level. The Charging Party opposed the placement at the step 1 level. As the Arbitrator's award did not state the step at the GS-7 level to which the grievant should be returned, on August 24, 1988, the Charging Party requested the Arbitrator to clarify his award. The Respondent objected to the Charging Party's request. On September 20, 1988, the Arbitrator determined that the award was ambiguous because it did not specify the step in the GS-7 grade to which the grievant should be demoted. The Arbitrator gave the parties the opportunity to submit evidence on the issue. Ex. 13. The Arbitrator noted in his September 20, 1988 letter to the parties that a "clarification is distinguishable from an amendment of the award, which you will recall I refused to grant on the ground that to have done so would have been an ultra vires act on my part." Ex. 13.

After receiving the parties' comments, the Arbitrator issued the following clarification of his award on October 16, 1988:

Grievant shall be suspended without pay or other benefits for a period of 30 days, starting on July 17, 1987. On the 30th day following July 17, 1987, i.e., on August 17, 1987, Grievant shall be demoted to the GS-7 grade, Step 10, but otherwise be restored to the position and duties of a Canine Enforcement Officer.

From August 17, 1987 to the date of the Agency's compliance with this Award, Grievant shall receive all back pay, including overtime, that Grievant would have earned at the GS-7 grade, Step 10, from August 17, 1987 to the date of the Agency's compliance with the Award, and shall have restored all accrued sick leave and annual leave credits.

Lest there be any misunderstanding on this score, it is the Arbitrator's intention that this clarification be effective as of the date of the original Award. This means, among other things, that Grievant is entitled to receive the benefit of any general salary adjustments made in subsequent years.

Ex. 16, p. 3.

On October 19, 1988, OPM received a copy of the Arbitrator's clarification of his award and thereafter did not request judicial review in the U.S. Court of Appeals for the Federal Circuit on behalf of the Respondent. Since that date, the Respondent has continued to pay the grievant at the GS-7, step 1 level. On December 23, 1988, the Respondent notified the grievant that, pursuant to the May 2, 1988, arbitration decision, he would receive accrued back pay, annual leave and sick leave from August 16, 1987, at the GS-7, step 1 level.

III. Positions of the Parties

A. General Counsel

In a Motion to Strike Portions of Respondent's Brief, the General Counsel contends that the 3 documents attached to the Respondent's brief were not included in the stipulated record, and that the Respondent's arguments that rely on 2 of those documents and pertain to a question regarding the Arbitrator's impartiality must be stricken and should not be considered by the Authority. The General Counsel notes that the parties' Stipulation of Facts constitutes the entire record in this matter and that all parties to the Stipulation, including the Respondent, waived the right to present any evidence other than that contained in this stipulation and its attachments.

In its brief on the merits, the General Counsel argues that the Respondent violated section 7116(a)(1) and (8) of the Statute by refusing to abide by certain terms of the final and binding clarified arbitration award.

The General Counsel first argues that the award is final and binding. In this regard, the General Counsel notes that as this grievance involved the termination of a Federal employee, which is a matter covered by section 7121(f) of the Statute,(2) the parties were precluded by section 7122(a) of the Statute(3) from filing exceptions to the award with the Authority, but instead the Respondent could have obtained review of the award only if OPM had sought such review in the U.S. Court of Appeals for the Federal Circuit under 5 U.S.C. 7703(d). In view of the fact that the record indicates that OPM did not seek judicial review of the award or its clarification in the U.S. Court of Appeals for the Federal Circuit, the General Counsel argues that the clarification of the award became final and binding. Citing United States Department of Justice, Bureau of Prisons, Washington, D.C. and Bureau of Prisons, Federal Correctional Institution, Ray Brook, New York, 22 FLRA 928 (1986) (Federal Correctional Institution, Ray Brook), enforced mem. sub. nom. Department of Justice v. FLRA, 819 F.2d 1131 (2d Cir. 1987), the General Counsel states that while the Authority does not have jurisdiction to review exceptions to the merits of an arbitrator's award falling within section 7121(f) of the Statute, the Authority has jurisdiction over matters of compliance with a final and binding award in an unfair labor practice proceeding. The General Counsel argues that in this case the evidence clearly establishes that the Respondent has failed and refused to comply with the clarification of the original arbitration award because the Respondent insists on reinstating the grievant at only step 1 of the GS-7 level, despite the Arbitrator's award to the contrary. Therefore, the General Counsel asserts, the Respondent's noncompliance with the arbitration award, as clarified, is in violation of section 7121 of the Statute, and is, therefore, violative of section 7116(a)(1) and (8) of the Statute.

The General Counsel maintains that the Arbitrator had the authority to issue a clarification of his award in order to resolve the ambiguity as to the step at the GS-7 level to which the grievant should have been reinstated. Finally, the General Counsel notes that the earlier unfair labor practice charge in Case No. 9-CA-80401, which was dismissed, predated the Arbitrator's October 16, 1988, clarification and has no bearing on the issue of whether the Respondent failed and refused to comply with the Arbitrator's October 16, 1988, order to reinstate the grievant at GS-7, step 10.

B. Charging Party

Initially, in a Motion To Strike, the Charging Party makes essentially the same arguments as the General Counsel with respect to the Respondent's attempts to offer arguments relating to the Arbitrator's impartiality and its reliance on documents not included in the stipulated record in this case.

In its brief on the merits, the Charging Party asserts that the Respondent must comply with the Arbitrator's clarified award because it is a final award not subject to further review. The Charging Party maintains, as does the General Counsel, that the exclusive forum in which to challenge an administrative decision concerning an adverse action is the U.S. Court of Appeals for the Federal Circuit; that only the Director of OPM can make such an appeal on behalf of an agency; and that as OPM failed to challenge the Arbitrator's award or the clarification of that award pursuant to 5 U.S.C. 7703, the award and its clarification became final and binding. The Charging Party maintains that the Respondent's failure to comply with the final and binding award and its clarification constitutes a violation of section 7116(a)(1) and (8) of the Statute.

Also, the Charging Party contends that the merits of an arbitration award covered by section 7121(f) of the Statute may not be collaterally attacked in an unfair labor practice proceeding, citing United States Army Adjutant General Publications Center, St. Louis, Missouri and American Federation of Government Employees, AFL-CIO, Local 2761, 22 FLRA 200 (1986) (Army Adjutant General Publications Center). Relying on Federal Correctional Institution, Ray Brook, the Charging Party argues that the Authority may not entertain the Respondent's sole defense that the Arbitrator was without jurisdiction to clarify his award.

The Charging Party further argues that American Federation of Government Employees v. FLRA, 850 F.2d 782 (D.C. Cir. 1988) (AFGE) is inapplicable to this case because AFGE involved the Authority's decision to refuse to enforce an arbitration award where the statutory jurisdiction to arbitrate was lacking and void. The Charging Party argues that AFGE, which concerned an adverse action covered by title 38 of the United States Code, established a narrow exception, which does not apply to an adverse action covered by 5 U.S.C. º 7513. Therefore, the Charging Party contends that the Authority's jurisdiction in this case is limited to the question of whether the Respondent has complied with the arbitration award, as clarified.

In the alternative, the Charging Party argues that the Arbitrator's clarification of his award was appropriate because it resolved an unintended ambiguity in the original award regarding the definition of the remedy, which is within the scope of the parties' original submission. The Charging Party draws a distinction between this case and one in which an arbitrator reopens an opinion and award to redetermine an issue.

C. Respondent

The Respondent argues that at the time of the grievant's reinstatement on July 11, 1988, at the GS-7, step 1 level, the Arbitrator's award of May 2, 1988, had become final and binding on the parties within the meaning of section 7122(b) and the parties' contract. The Respondent contends that as the Charging Party did not seek judicial review of the May 2 award, that award became binding on June 4, 1988. Accordingly, the Respondent argues that it had already discharged its statutory and contractual obligations pertaining to the May 2 award by the time of the Arbitrator's clarification on October 16, 1988. Therefore, the Respondent maintains, because the May 2 award had become final and binding on the parties, the Arbitrator's jurisdiction had expired before he issued the clarification.

The Respondent further asserts that, in the absence of a request for clarification from both parties or a joint stipulation that the Arbitrator retained jurisdiction after the issuance of his award, the Arbitrator lacked any legal or official authority to clarify his award. The Respondent also notes that in this case the Arbitrator recognized his lack of authority to rule on a unilateral request after the submission of the May 2 award when he denied the Respondent's request for an addendum to the award. The Respondent argues that the Arbitrator's clarification of October 16 was null and void and without legal effect, that the Respondent was under no obligation to implement that clarification, and that, therefore, the Respondent has not committed any violations of section 7116(a)(1) and (8) by refusing to take further action. The Respondent attached to its brief a "visual depiction of the relevant dates as stipulated to by the parties or referred to in the stipulated Exhibits." Respondent's brief at 4; Attachment 1.

Further, the Respondent maintains that no clarification of the May 2 award was necessary because that award was clear and unambiguous and the reinstatement of the grievant at step 1 following a demotion was consistent with the Respondent's practice. In support of its argument, the Respondent maintains that in upholding the San Francisco Regional Office's dismissal of the earlier unfair labor practice charge in Case No. 9-CA-80401, the Assistant General Counsel for Appeals knew about the Arbitrator's clarification and the Respondent's failure to act pursuant to that clarification, but nonetheless found that the Respondent had complied with the May 2 award.

Finally, the Respondent argues that by granting the Union's unilateral request for clarification when it had denied the Respondent's request for an addendum, the Arbitrator showed his partiality. In support of this contention, the Respondent attached to its brief 2 documents not contained or referenced in the Stipulation of Facts.

In its Objection to the Motions to Strike filed by the General Counsel and the Charging Party, the Respondent argues that the Authority should consider its entire brief, including the 3 attachments. With regard to Attachment 3 and its argument regarding the Arbitrator's partiality, the Respondent argues that this new evidence came to light only after the parties had entered into the Stipulation of Facts and that these newly acquired facts are material and relevant to the issue of whether the Arbitrator had jurisdiction to render the clarification. It further argues that Attachment 1 is merely a "time line" that asserts facts already stipulated to, and that Attachment 2, Charging Party's Motion for Postponement, is already a formal document in this case.

IV. Analysis and Conclusions

As a preliminary matter, we grant the motions of the General Counsel and the Charging Party to strike portions of the Respondent's brief and attachments that go beyond the Stipulation of Facts entered into by the parties. The parties agreed that the "Stipulation . . . constitute[d] the entire record in this case" and the parties "waive[d] the right to present any evidence other than that contained in this Stipulation and its attachments." Stipulation of Facts, para. 36. The 3 attachments to the Respondent's brief all go beyond the stipulated record. Specifically with regard to the "visual depiction of the relevant dates," we note that it includes dates not referred to in the Stipulation. Further, Attachment 2 was not included as a formal paper in the stipulated record of this case in paragraph 1 of the Stipulation, and no part of Attachment 3 was referred to in the Stipulation. With regard to the Respondent's contention that Attachment 3 contains evidence acquired after it entered into the Stipulation, we note that the information in Attachment 3 involved facts that were discoverable before the date of the Stipulation. Accordingly, we will not consider the facts contained in the attachments or any arguments based on them.

We conclude that the Respondent's failure to comply with the Arbitrator's award, as clarified, violated section 7116(a)(1) and (8) of the Statute.

It is well established that agencies are required to implement validly obtained arbitration awards that become "final and binding" within the meaning of section 7122(b) of the Statute. See, for example, U.S. Department of Justice and Department of Justice, Bureau of Prisons (Washington, D.C.) and Federal Correctional Institution (Danbury, Connecticut), 20 FLRA 39, 42 (1985), enforced sub nom. United States Department of Justice v. FLRA, 792 F.2d 25 (2d Cir. 1986). A failure to comply with a final and binding arbitration award violates section 7116(a)(1) and (8) of the Statute. Id. at 43.

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. If no exceptions have been filed, the Authority will not entertain in a subsequent unfair labor practice proceeding matters that could have been raised as exceptions. Department of Defense, Department of the Navy, United States Marine Corps, United States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA 686, 687 (1984).

Where an arbitrator's award involves a matter such as a removal, demotion, or suspension for more than 14 days, the parties to the award are precluded by section 7122(a) of the Statute from filing exceptions to the award with the Authority and must instead seek judicial review under section 7121(f) of the Statute. Pursuant to section 7703 of title 5, United States Code, that review must be sought on behalf of an agency by the Director of OPM in the U.S. Court of Appeals for the Federal Circuit within 30 days of the receipt of notice of the award by OPM.

In Army Adjutant General Publications Center, 22 FLRA 200, the Authority addressed the matter of its jurisdiction over compliance with arbitration awards covered by section 7121(f). The Authority concluded that once such an award becomes final and binding because judicial review has not been sought, the Authority has jurisdiction over the matter to order compliance with the award in an unfair labor practice proceeding. Id. at 208. See also Federal Correctional Institution, Ray Brook, 22 FLRA at 932 (Authority has jurisdiction to order compliance with clarified award under section 7121(f) that became final and binding at expiration of 30 days after OPM's receipt of notice of award).

In this case, we find that the clarified award of October 16, 1988, became final and binding, no appeal having been filed, at the expiration of 30 days after OPM's receipt of the notice of the award and that the unfair labor practice charge in this case was filed within the six-month period required by section 7118(a)(4) of the Statute.

The Respondent's exceptions raise issues concerning the validity and legal effect of the October 16 clarification of the May 2 award. We find that these issues are not litigable in this unfair labor practice proceeding, but are matters that go to the substance of the award that could have been raised only within the appeals procedure established by Congress. See Army Adjutant General Publications Center, 22 FLRA 200; Federal Correctional Institution, Ray Brook, 22 FLRA 928. Moreover, although not specifically argued by the Respondent, we agree with the Charging Party that this case is distinguishable from AFGE, 850 F.2d 782. In AFGE, the court upheld the Authority's decision to refuse to enforce an award under an unfair labor practice procedure dealing with an arbitrator's reinstatement of a staff nurse grievant covered by 38 U.S.C. º 4110, because there was no statutory jurisdiction to arbitrate the case. In agreement with the Charging Party, we find that this case, which concerns an adverse action covered by 5 U.S.C.º 7512 over which the Arbitrator clearly had the statutory jurisdiction to arbitrate, is not controlled by AFGE, which concerned an adverse action covered by title 38 of U.S.C. over which an arbitrator had no statutory jurisdiction to arbitrate.

The Respondent does not dispute that it has not complied with the Arbitrator's award, as clarified on October 16, 1988, which, as we have found, became final and binding when no timely action was taken by the Director of OPM under 5 U.S.C. º 7703(d). Accordingly, we conclude that the Respondent's noncompliance violates section 7116(a)(1) and (8) of the Statute. Federal Correctional Institution, Ray Brook, 22 FLRA at 932-33.(4)

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Customs Service shall:

1. Cease and desist from:

(a) Failing and refusing to fully implement the arbitration award of Arbitrator Leo Kanowitz, which was issued on May 2, 1988, and was clarified by his October 16, 1988 award.

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

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

(a) Comply with the arbitration award issued by Arbitrator Leo Kanowitz on May 2, 1988, and clarified on October 16, 1988, by reinstating the grievant in that case to GS-7, step 10, and make the grievant whole, including the payment of interest, for the difference in salaries and other benefits between the GS-7, step 1 and the GS-7, step 10 rates.

(b) Post at its facilities copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Commissioner, U.S. Customs Service, Washington, D.C., 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 ensure 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 IX, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103, 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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to fully implement the arbitration award of Arbitrator Leo Kanowitz, which was issued on May 2, 1988, and was clarified by his October 16, 1988 award.

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 with the arbitration award issued by Arbitrator Leo Kanowitz on May 2, 1988, and clarified on October 16, 1988, by reinstating the grievant in that case to GS-7, step 10 and WE WILL make the grievant whole, including the payment of interest, for the difference in salaries and other benefits between the GS-7, step 1 and the GS-7, step 10 rates.

_________________________
(Agency)

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 for the Federal Labor Relations Authority whose address is: Region IX, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103 and whose telephone number is: (415) 744-4000.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. On June 17, 1988, the Union had filed an earlier charge in Case No. 9-CA-80401, alleging that the Respondent had failed to reinstate the grievant in violation of the Arbitrator's award. On September 29, 1988, the Acting Regional Director dismissed that charge; that dismissal was upheld by the Assistant General Counsel for Appeals on February 28, 1989.

2. Section 7121(f) provides, in pertinent part: "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."

3. Section 7122(a) provides, in pertinent part: "Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title)."

4. Contrary to the Respondent's contention, we do not find the fact that the Assistant General Counsel for Appeals upheld the dismissal of an earlier charge to be relevant to the instant case. We are, of course, not bound by prosecutorial decisions of the General Counsel. Social Security Administration, Baltimore, Maryland and Social Security Administration, Area II, Boston Region, Boston, Massachusetts, 39 FLRA No. 54 (1991). Moreover, the charge in that case and the dismissal of that charge predated the Arbitrator's October 16, 1988, clarification, and, therefore, it involved different factual circumstances than does the instant case. In view of that fact, it is immaterial that the Assistant General Counsel upheld the dismissal of the charg