41:0755(70)CA - - HHS, SSA and AFGE - - 1991 FLRAdec CA - - v41 p755

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41:0755(70)CA
The decision of the Authority follows:


41 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Charging Party/Union)

3-CA-80274

DECISION

July 19, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Union to the attached decision of the Administrative Law Judge issued in the above-entitled proceeding. The Respondent filed oppositions to the General Counsel's and the Union's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it failed to comply with an arbitration award.

The Judge concluded that in the absence of any dispute concerning the facts in the case, a summary judgment was the appropriate mechanism for resolving the issue raised by the dispute. The Judge concluded that the Respondent's conduct did not violate section 7116(a)(1) and (8) of the Statute. Consequently, the Judge granted the Respondent's motion for summary judgment.

For the reasons discussed below, we find, contrary to the Judge, that the Respondent's failure to comply with the award violated section 7116(a)(1) and (8) of the Statute.

II. Background

On September 12, 1986, Arbitrator Justin C. Smith issued an award in American Arbitration Association (AAA) Case No. 74-30-0228-82, involving a grievance concerning the January 27, 1984, resignation of the grievant, Kirk Bigelow, who was employed as a claims representative in the Respondent's New York Office. The grievant also formerly served as Executive Vice President of Local 3369 of the American Federation of Government Employees.

The grievance arose from the following: In 1983, Bigelow was removed from his position. A grievance was filed over the removal and submitted to arbitration. In the award, the arbitrator ordered the Respondent to reinstate the grievant. By letter dated December 16, 1983, the Respondent, in accordance with the award, offered the grievant reinstatement to his position. By letter dated December 29, 1983, the grievant, through the Union, requested at least 6 months of leave without pay (LWOP) to attend law school. The Respondent denied the request. On January 11, 1984, the Union filed a grievance challenging the denial of LWOP. On January 27, 1984, prior to any action on the grievance, Bigelow submitted his resignation which was accepted. The Union submitted a second grievance on behalf of Bigelow alleging that he was constructively discharged. The two grievances were consolidated, and the parties jointly selected an arbitrator to arbitrate the consolidated grievance concerning the LWOP and constructive discharge allegations. A hearing was scheduled on the matter, but was postponed at the Union's request. Later, the Union unilaterally submitted the same grievance to Arbitrator Smith.

Arbitrator Smith concluded that Bigelow's resignation was involuntary and that it was induced by the Respondent's improper denial of his request for LWOP. The Arbitrator ordered the Respondent to reinstate Bigelow with backpay.

Because the award concerned an adverse action covered by 5 U.S.C. § 7512, review of the award was pursuant to section 7121(f) of the Statute and 5 U.S.C. § 7703(d). In accordance with these provisions, the Office of Personnel Management (OPM) sought judicial review of Arbitrator Smith's award. On July 9, 1987, OPM filed a petition for review of the award with the United States Court of Appeals for the Federal Circuit. The court denied OPM's petition for review in Horner v. Bigelow, Misc. Docket No. 178 (Fed. Cir. Aug. 31, 1987) (order). Subsequently, the Respondent refused to comply with Arbitrator Smith's award.

III. Judge's Decision

The Judge concluded that the Respondent's refusal to comply with the award did not violate section 7116(a)(1) and (8) of the Statute because Arbitrator Smith did not have jurisdiction over the grievance.

Before the Judge, the Respondent argued that Arbitrator Smith's award could not be enforced because, based on the parties' agreement, he lacked jurisdiction to render the award. Respondent's Motion at 1, 13-15. The Respondent also asserted that the enforceability of the award had not been previously litigated and that, therefore, the Respondent was not precluded from raising the award's enforceability as an affirmative defense to this action. Id. at 1. The General Counsel and the Union asserted that: (1) arbitration awards relating to adverse actions under 5 U.S.C. § 7512 are excluded from the Authority's jurisdiction under section 7122(a) of the Statute; (2) the United States Court of Appeals for the Federal Circuit has exclusive jurisdiction over section 7512 cases, including arbitral jurisdictional challenges; (3) Arbitrator Smith's award was reviewed by the court and affirmed and, therefore, became final and binding; and (4) consequently, the only issue before the Authority is whether the Respondent complied with the award. General Counsel's Response at 14-16; Union's Cross-Motion at 5, 7-8. The General Counsel and the Union also asserted that the only time a party may collaterally attack a final and binding award during an unfair labor practice proceeding is when the award involves a matter that is precluded by law from the permissible coverage of a grievance procedure negotiated under the Statute, and not, as here, when the challenge is based on an assertion that the arbitrator lacked jurisdiction based on the parties' agreement. General Counsel's Response at 10-11; Union's Cross-Motion at 9-11.

Citing Authority precedent, the Judge noted that, while the Authority has no jurisdiction to review exceptions to an arbitrator's award falling within section 7121(f) of the Statute, the Authority does have jurisdiction to order compliance with section 7121(f) arbitration awards. The Judge further stated, noting Authority decisions, that matters which go to the merits of an award are not litigable in an unfair labor practice proceeding brought to enforce the award; instead, these matters may only be raised within the appeals procedures established by Congress. Judge's Decision at 9. However, as to matters concerning jurisdiction, the Judge found that jurisdiction may be raised at any time. Id. (citing AT&T Technologies v. Communications Workers, 475 U.S. 643 (1986) and Devine v. Levin, 739 F.2d 1567 (Fed. Cir. 1984)). The Judge further noted that Arbitrator Smith's jurisdiction to decide the grievance was not raised by OPM with the United States Court of Appeals for the Federal Circuit. The Judge found, that "whether raised or not, the jurisdiction of Arbitrator Smith clearly was not decided by the [court] which denied OPM's petition for review." Id. at 9-10 (footnote omitted).

The Judge further rejected the General Counsel's claim that Veterans Administration Central Office, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 27 FLRA 835 (1987) (VA Central Office), affirmed sub nom. AFGE v. FLRA, 850 F.2d 782 (D.C. Cir. 1988) did not permit a challenge to Arbitrator Smith's jurisdiction in this case. In particular, the General Counsel asserted that VA Central Office permits an arbitrator's jurisdiction to be challenged only when the subject matter of the award is precluded by law. The Judge did not agree. In the Judge's view, VA Central Office "permits the arbitrator's jurisdiction to be challenged in an unfair labor practice proceeding to enforce a [section 71]21(f) award regardless of the reason for the asserted lack of jurisdiction . . . ." Judge's Decision at 13.

Having determined that an arbitrator's jurisdiction could be challenged in an unfair labor practice proceeding to enforce a section 7121(f) award, the Judge examined Arbitrator Smith's jurisdiction to decide the employee's grievance. The Judge noted that: (1) the parties in AAA Case No. 74-30-0228-82, had entered into two agreements--Memorandums of Understanding (MOUs I and II)--which set forth the procedures for processing employees' claims before Arbitrator Smith; (2) Arbitrator Smith's jurisdiction to process employees' claims, pursuant to the MOUs and other documents, had been determined by Arbitrator Ira F. Jaffe in his award issued pursuant to the Authority's decision in American Federation of Government Employees and Social Security Administration, 29 FLRA 1568 (1987) (then Member McKee dissenting, in part) (Social Security Administration I), request for reconsideration denied, 30 FLRA 371 (1987); and (3) the Union appealed Arbitrator Jaffe's award to the Authority and the appeal was denied in Social Security Administration and National Council of Social Security Administration Field Operations Locals, Council 220, American Federation of Government Employees, AFL-CIO, 33 FLRA 743 (1988) (Social Security Administration II).

Taking into account the above, the Judge found that the employee's grievance was not filed under MOUs I or II and that it was not filed within any other time periods fixed for filing claims in AAA Case No. 74-30-0228-82. The Judge concluded, therefore, that Arbitrator Smith's award was "ultra vires and unenforceable." Judge's Decision at 14. Accordingly, the Judge concluded that the Respondent did not violate section 7116(a)(1) and (8) of the Statute. The Judge, therefore, granted the Respondent's Motion for Summary Judgment, denied the General Counsel's Motion for Summary Judgment and the Charging Party's Cross-Motion, and dismissed the complaint.

IV. Positions of the Parties

A. General Counsel

The General Counsel excepts to: (1) the Judge's conclusion that the Respondent did not violate section 7116(a)(1) and (8) of the Statute by its failure to comply with Arbitrator Smith's award; and (2) the Judge's reliance on VA Central Office. The General Counsel's exceptions incorporate the arguments contained in the General Counsel's written response to the Judge.

The General Counsel asserts that the issue in this case is "to what extent may a section 7121(f) arbitration award, which was upheld by [the United States Court of Appeals for] the Federal Circuit upon section 7703(d) review, be collaterally attacked during an ensuing unfair labor practice proceeding brought to enforce the award." General Counsel's Exceptions at 1. The General Counsel concludes that the Judge's position "imposes no limitation whatsoever" on a party's ability to attack an arbitrator's jurisdiction. Id. at 1-2. The General Counsel disagrees with the Judge's position and, therefore, requests the Authority to reverse the Judge's decision.

The General Counsel states that: (1) "[a]s a general rule, a section 7121(f) award is not subject to collateral attack during an unfair labor practice proceeding brought to enforce the award"; and (2) "[t]he only exception to this general rule is when the underlying grievance cannot be arbitrated as a matter of law." Id. at 2 (emphasis in original). The General Counsel asserts that this case "does not involve an issue which is precluded by law from arbitration[,]" but rather concerns the contractual "lack of arbitral jurisdiction." Id. Such a concern, according to the General Counsel, "is a matter which the Federal Circuit will entertain on a section 7703(d) appeal." Id. Therefore, the General Counsel contends that the proper forum for the matter involved in this case is the United States Court of Appeals for the Federal Circuit and "not the FLRA." Id.

The General Counsel further contends that, as the award has been reviewed by the Federal Circuit under 5 U.S.C. § 7703(d), it is not now subject to collateral attack because the Respondent's claim of "lack of arbitral jurisdiction" could have been raised before the court. Id. at 3. The General Counsel asserts that, by relying on AFGE v. FLRA to find that Arbitrator Smith lacked jurisdiction over the matter, the Judge "has misconstrued the force and effect of the . . . language" in that case. Id. at 3-4. According to the General Counsel, the import of that case is that an arbitrator's jurisdiction to decide a section 7121(f) matter may be attacked if it is precluded by law as opposed to a case where a section 7121(f) arbitration award is challenged on contractual arbitrability grounds as in this case.

The General Counsel also maintains that the Judge allowed the Respondent to collaterally attack the award because the Respondent had no direct review of the award under 5 U.S.C. § 7703(d). The General Counsel contends that the absence of direct review under this section does not create a right to collaterally attack a section 7121(f) award "during a section 7118 enforcement proceeding." Id. at 4 n.*. In the General Counsel's view, this avenue of review was not intended by Congress. Rather, "[i]n enacting section 7703(d), Congress expressly intended to preclude agencies from contesting section 7121(f) awards[,]" and left the appeal of these awards to OPM and the review to the "discretion of the Federal Circuit." Id. The General Counsel asserts that to allow agencies to attack these awards, especially when an award has been reviewed by the Federal Circuit, during an unfair labor practice enforcement proceeding would circumvent this statutory scheme for review.

The General Counsel also contends that the Authority's decision in Social Security Administration II is not dispositive of this case because the award involved in this dispute is a "final and binding" award enforceable through the unfair labor practice procedures, and because the award is "beyond the scope of the Authority's decision[ ] in that case." Id. at 5. Finally, the General Counsel asserts that if the Judge's decision is allowed to stand "dangerous and unwarranted precedent will be established" because "agencies potentially could raise . . . procedural arbitrability claims as a defense for noncompliance with a section 7121(f) award in an ensuing unfair labor practice enforcement proceeding." Id. at 6. In the General Counsel's view, this would be "contrary to sections 7121(f) and 7703(d) and must not be accepted by the Authority." Id.

B. Union

In its exceptions, the Union incorporates the General Counsel's exceptions and includes other exceptions to the Judge's decision.

The Union, like the General Counsel, contends that the Judge erred by permitting the Respondent to collaterally attack Arbitrator Smith's jurisdiction in an unfair labor practice proceeding. The Union states that the Statute excludes awards relating to adverse actions from the Authority's jurisdiction. The Union asserts that "arbitral awards dealing with adverse actions [section 7512 matters] may . . . only be challenged in the Federal Circuit Court of Appeals." Union's Exceptions at 7. Citing United States Army, Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA 200 (1986) (Adjutant General Publications Center), the Union contends that, consistent with the statutory scheme, the Authority's "scope of review in proceedings to enforce § 7121(f) awards is limited to determining whether the party complied with the award." Id. at 8. The Union states that, in this case, the arbitration award involved an adverse action and that, "[t]herefore, it is incontrovertible that review of Smith's award, including related jurisdictional issues, could only be obtained from the Federal Circuit Court of Appeals." Id. at 9 (footnote omitted; emphasis in original).

The Union further states that: (1) the court denied OPM's petition for review; (2) the Government neither petitioned the court for reconsideration nor filed a petition for certiorari in the Supreme Court within the necessary time period; and (3) the award, therefore, "became final and binding either as of the date of the court's denial, or at the latest, upon expiration of the appellate period[.]" Id. The Union contends that the "court's decision is final as to the jurisdictional issue as well as the merits of the award." Id. Therefore, according to the Union, the sole issue before the Authority is "simply whether [the Respondent] committed an ULP in refusing to comply with Smith's order to reinstate [the employee] with backpay." Id.

The Union contends that the Authority's decision in VA Central Office and the court's decision in AFGE v. FLRA do not warrant, as the Judge found, "deviation from the well-established principle that the Authority will not review the merits of a § 7121(f) award in the context of an ULP proceeding." Id. at 10. The Union states that there were "limited circumstance[s]" in that case which justified the Authority's deviation from its established practice. Id. at 12. The Union states that the award was "proscribed by law and void ab initio " and that the "court deemed the complete lack of appellate review relevant in finding the [Authority's] deviation from its normal refusal to entertain jurisdictional challenges in an ULP setting to be reasonable." Id. at 11. The Union asserts that these circumstances do not exist in this case.

The Union further states that the Judge found that OPM did not raise the issue of jurisdiction before the Federal Circuit Court of Appeals. The Union, citing certain statements in OPM's petition to the court, contends that OPM not only had an opportunity to challenge Smith's jurisdiction in the court proceeding, but did do so. Id. at 13. According to the Union, the "court's refusal to overturn the award on those grounds, and the [G]overnment's failure to appeal further, preclude any subsequent administrative review of the issue." Id. at 13. Also, the Union asserts that, even if the Government did ignore the jurisdictional issue in the judicial proceeding, nothing in the law dictated its exclusion, and, therefore, the Respondent has waived this defense to the unfair labor practice charge.

The Union asserts that the Judge "compounds the [jurisdictional] error by thereafter concluding that Smith did not have jurisdiction over [the employee's] grievance challenging his involuntary resignation." Id. at 15 (footnote omitted). The Union states that the Judge "relies exclusively on the assertion that Smith lacked jurisdiction over any claim submitted after September 12, 1985 as the basis for his conclusion." Id. (emphasis in original). The Union asserts that "it is readily apparent that [the Judge] construes Ira Jaffe's award in [Social Security Administration II] as dispositive on the issue of Smith's jurisdiction." Id. at 16 (footnote omitted; emphasis in original). The Union contends that such a view "fundamentally conflicts with the Statute" because, as mentioned previously, "review of Smith's award, including related jurisdictional issues, could only be obtained from the Federal Circuit Court of Appeals." Id. (emphasis in original). Additionally, the Union states that in Social Security Administration II, the Authority stated that "Jaffe's decision [did not alter] any previous final and binding arbitral awards[,]" some of which involved claims submitted after September 1985. Id. at 18. Therefore, according to the Union, the Judge's decision finding that Arbitrator Smith lacked jurisdiction over the instant award, which also dealt with an award submitted after September 1985, is contrary to the Authority's decision.

The Union also asserts that "[e]ven if the [Judge] did not rely on Jaffe's award in resolving the instant dispute, [the Judge's determination] that Smith lacked jurisdiction over any claims after September 12, 1985 simply fails to comport with the Authority decision[s]" which "upheld awards [issued] by Smith relating to the official time dispute issued after the date cited by [the Judge]. Id. at 17 (emphasis in original).

Additionally, the Union disputes certain factual findings of the Judge. The Union contends that the Judge "incorrectly characterizes:" (1) the level at which Arbitrator Smith was selected by the parties to resolve claims in AAA Case No. 74-30-0228-82; (2) the Union's intent in submitting the employee's grievance to Arbitrator Smith; and (3) the Union's action with respect to the notice given to the Respondent concerning the postponement of the arbitration hearing. Id. at 15 n.4.

C. Respondent

In its opposition to the General Counsel's exceptions, the Respondent states that the Judge correctly interpreted VA Central Office and AFGE v. FLRA "to allow the [G]overnment to challenge an arbitrator's jurisdiction during an enforcement proceeding before the Authority where the [G]overnment had no prior opportunity to do so." Opposition at 3.

The Respondent disputes the General Counsel's contention that collateral attack of an arbitrator's award in an unfair labor practice proceeding is permissible only when the underlying grievance cannot be arbitrated as a matter of law. The Respondent asserts that "neither the Authority's decision in [VA Central Office] nor the [court's decision] in AFGE v. FLRA contains any language whatsoever limiting the holding to cases of statutory preclusion." Id. at 3-4. According to the Respondent, "[t]he mere fact that the lack of jurisdiction in the instant case is based on the parties' lack of mutual agreement . . . is immaterial." Id. at 4. The Respondent further states that in VA Central Office, the Authority stated that it would "enforce compliance with 'validly obtained arbitration awards.'" Id. at 5 (quoting VA Central Office, 27 FLRA at 840). Noting this language, the Respondent maintains that "[s]ince Arbitrator Smith had no jurisdiction over [the employees's] claim, the award was not validly obtained" and, therefore, the Judge was correct in finding that its failure to comply with the award did not constitute a violation of the Statute. Id.

Finally, the Respondent contends that OPM's appeal of the award to the Federal Circuit does not preclude its challenge to Arbitrator Smith's jurisdiction. According to the Respondent, "OPM did not raise arbitrability in its petition for review and, in any case, the court declined to review the case." Id. at 6. Further, citing Devine v. Levin, 739 F.2d 1567 (Fed. Cir. 1984) and AFGE v. FLRA, the Respondent asserts that "[a] decisionmaker's lack of jurisdiction is a defense that can be raised at any time." Id.

As to the Union's exceptions, the Respondent incorporates its response to the General Counsel's exceptions. Additionally, the Respondent addresses specific arguments presented by the Union that were not raised by the General Counsel. The Respondent contends that the Union "incorrectly states that the [G]overnment challenged Arbitrator Smith's jurisdiction before the Federal Circuit." Opposition to Union's Exceptions at 2. According to the Respondent, "OPM's petition for review challenged the merits of the award, and no other aspect of the case." Id. The Respondent further asserts that it is "disingenuous [for the Union] to assert that OPM litigated the current jurisdictional question [before the Federal Circuit] by merely alluding in its 'Statement of the Case' to the Union's improper insertion of [the employee's] constructive discharge claim into the September 12, 1986 hearing before Arbitrator Smith." Id.

The Respondent contends that "OPM did not assert lack of jurisdiction in any meaningful way or devote any of its argument to the question of jurisdiction." Id. at 3. Moreover, the Respondent states that even if OPM had raised the jurisdiction issue, the Federal Circuit's decision is not res judicata to the present issue because the court "never addressed the jurisdiction issue." Id.

The Respondent also states that "[t]he Union implies that the Authority directed compliance with the subject arbitration award in its decision denying the Union exceptions to Arbitrator . . . Jaffe's award [in Social Security Administration II]." Id. The Respondent asserts that, contrary to the Union's contention, the decision in that case does not direct compliance with the subject award.

V. Analysis and Conclusions

The Judge determined that the question of whether Arbitrator Smith exceeded his authority by deciding an issue that had not been presented to him by the parties when he resolved the Bigelow grievance was a question of jurisdiction and that Arbitrator Smith's jurisdiction could be challenged in the unfair labor practice proceeding. We disagree. For the reasons that follow, we find that the issue of whether Arbitrator Smith exceeded his authority was not subject to challenge in the unfair labor practice proceeding. The only issue for resolution by the Judge was whether the Respondent had failed to comply with the Arbitrator's award. Because it is not disputed that the Respondent failed to comply, we find a violation of the Statute, and we will issue a remedial order.(*)

As the Judge noted, it is clear that "matters which go to the merits of an award are not litigable in an unfair labor practice proceeding brought to enforce the award, '. . . matters that go to the merits of the award . . . may only be raised within the appeals procedures established by Congress.[']" Judge's Decision at 9 (quoting Adjutant General Publications Center, 22 FLRA at 206, and 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, 932 (1986), enforced mem. sub nom. Department of Justice v. FLRA, 819 F.2d 1131 (2d Cir. 1987) (FCI, Ray Brook)). The Authority and the courts have held that, under section 7122(b) of the Statute, an agency must take the action required by an arbitrator's award when that award becomes "final and binding." U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494-95 (1990) (and cases cited in the decision). An award becomes final and binding under section 7122(b) when no timely exceptions are filed to the award under section 7122(a) of the Statute. Id. (citing 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)). An award also becomes final and binding when timely filed exceptions are denied by the Authority. Id. (citing 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)).

In United States Department of Justice v. FLRA, the court refused to indirectly review the Authority's decision that denied exceptions to an arbitration award. The court refused to permit the agency respondent to relitigate the Authority's decision as part of the unfair labor practice proceeding for refusing to comply with the arbitration award. In reaching this decision, the court noted from the legislative history to the Statute that it was the "intent of the House . . . to make it clear that the awards of arbitrators, when they become final, are not subject to further review by any other authority or administrative body . . . ." 792 F.2d at 29 (citing H.R. Rep. No. 1717, 95th Cong. 2d Sess. 158 (1978) (conference report)). The court ruled that, in view of the language of the Statute and the legislative history, Congress did not intend indirect review of arbitration awards. The court further ruled that such indirect review "runs counter to public policy." Id. The court noted that indirect review would result in excessive delay and expense contrary to the public policy underlying arbitration awards that favors quick, definite, and inexpensive resolution of labor disputes. The court in United States Marshals Service v. FLRA similarly rejected indirect review of arbitration awards. The court found that such review had "little to commend it in terms of judicial economy" and that "[i]t also fl[ew] in the face of legislative intent." 778 F.2d at 1436. The court held that it would "review the award only to determine whether an unfair labor practice was committed[,]" and the court had "little difficulty in holding that the studied refusal of the employer to abide by an F.L.R.A. order enforcing a final arbitration award [wa]s an unfair labor practice." Id. at 1437.

However, when the arbitrator's award relates to a matter described in section 7121(f) of the Statute, such as a removal covered by 5 U.S.C. § 7512, the parties to the award are precluded by section 7122(a) of the Statute from filing exceptions to the award with the Authority. Adjutant General Publications Center, 22 FLRA at 203. Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703. However, pursuant to section 7703, agencies adversely affected or aggrieved by the arbitrator's award in these matters are not entitled to obtain judicial review. Instead, section 7703(d) provides that the Director of OPM may seek to obtain review if the Director determines that the arbitrator erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the arbitrator's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. Id. at 205. When OPM seeks review, the granting of the petition is at the discretion of the U.S. Court of Appeals for the Federal Circuit. Id. Examining this statutory scheme, the Authority held in Adjutant General Publications Center that for awards relating to these matters described in section 7121(f), the award becomes final and binding upon completion of the appeal process in accordance with section 7703(d). Id. at 207; accord FCI, Ray Brook. Moreover, the Authority concluded that there was no indication that the provision of section 7122(b), which states that "[a]n agency shall take the actions required by an arbitrator's final award," should not apply to those awards that became final and binding by reference to section 7703. In other words, the Authority held that, once an award became final and binding, differences in review forum became meaningless and that the Authority would enforce compliance with an arbitrator's final award. Adjutant General Publications Center, 22 FLRA at 207.

In this case, the arbitrator's award became final and binding in accordance with section 7703(d) when the U.S. Court of Appeals for the Federal Circuit denied OPM's petition for review in Horner v. Bigelow on August 31, 1987. In our view, the purposes and policies of the Statute identified and discussed by the Authority and the courts in denying indirect review of the merits of an arbitration award in the unfair labor practice proceeding for refusing to comply with the award are best served in this case by enforcing the mandate of section 7122(b): the Respondent shall take the actions required by the Arbitrator's final award. As directed by the conference report, we will not subject the Arbitrator's final award to further review. Furthermore, in our view, to paraphrase the words of the U.S. Court of Appeals for the Ninth Circuit in United States Marshals Service v. FLRA, the Judge's approach has nothing to commend it in terms of the Statute's strong endorsement of arbitration as the preferred means of resolving labor disputes with dispatch and finality. See United States Marshals Service v. FLRA, 708 F.2d 1417, 1420 (9th Cir. 1983). Moreover, nothing cited and relied on by the Judge persuades us otherwise.

We reject the Judge's reliance on the Authority's decision in VA Central Office and the court's decision in AFGE v. FLRA enforcing the Authority's decision. We agree with the General Counsel and the Charging Party that VA Central Office is limited to cases involving the lack of jurisdiction by an arbitrator because of exclusions by law from the permissible coverage of a grievance procedure negotiated under the Statute. We recently confirmed just such a narrow application of VA Central Office in U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Leavenworth Kansas and American Federation of Government Employees, Local 85, 39 FLRA 1162 (1991) (VA Medical Center). In VA Medical Center, the agency moved for reconsideration of our decision denying the agency's exceptions, in which the agency contended that the award was deficient because the arbitrator did not have jurisdiction to extend the coverage of the grievances to employees of other departments of the agency. In its motion, the agency argued that the Authority failed to consider the arbitrator's lack of jurisdiction and cited as support for its motion VA Central Office. We denied the motion for reconsideration and specifically held that VA Central Office was "inapposite to the circumstances in the present case." 39 FLRA at 1167. We advised that VA Central Office "concerned the lack of jurisdiction by an arbitrator . . . over matters that are covered exclusively by title 38 of the United States Code. There is no such statutory exclusion in the present case." Id. We repeat that advice in this case: there is no such statutory exclusion in the present case. It is undisputed that, in this case, the only question of the Arbitrator's authority or jurisdiction was whether, in this particular case, the parties agreed to submit this particular grievance to this particular arbitrator.

The Authority's refusal to enforce an arbitration award concerning the separation of a probationary, competitive service employee in Office of Personnel Management, 17 FLRA 21 (1985) (OPM), was similarly narrowly confined and also provides no support for the Judge's decision. In OPM, the Authority refused to enforce compliance with the award although an earlier decision of the Authority had upheld the arbitrator's jurisdiction to resolve such a grievance. The Authority dismissed the complaint because, during the course of the unfair labor practice proceeding, the U.S. Court of Appeals for the D.C. Circuit had held that such grievances were precluded by governing law and regulation, and the Authority had adopted the conclusions of the court and held that decisions of the Authority, including the Authority's decision upholding the arbitrator's jurisdiction, would no longer be followed. In this case, there are no such circumstances involving Arbitrator Smith's award and the decision of the Federal Circuit.

We also find that the Judge placed unwarranted reliance on the use of the terms "validly obtained arbitration awards" in VA Central Office. Judge's Decision at 11 (quoting with emphasis VA Central Office, 27 FLRA at 838). We find such reliance unwarranted because the use of these terms in no manner permits the type of collateral attack and indirect review allowed by the Judge. The term "validly obtained" first appears in the Judge's and the Authority's decisions in 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 (6th Cir. 1985), and merely reflects the discussion of the Judge. The Judge determined that the award was "validly obtained" despite specifically ruling that the jurisdiction of the arbitrator was not subject to collateral attack. He apparently made the determination because he was "not persuaded that a collateral attack on an arbitrator's decision would never lie." Id. at 170 n.8. However, he found that the attack would not lie in the case before him. He refused to consider any question of jurisdiction because the question of jurisdiction had been raised and litigated by the parties. Accordingly, he found that the judgment was conclusive on them and precluded any collateral attack of jurisdiction. Id. at 171 (citing Stoll v. Gottlieb, 305 U.S. 165 (1938)). Furthermore, as relevant to the facts of this case, the Judge specifically held that an issue concerning the "scope of the arbitration agreement" was not a ground for collateral attack because such an issue was "for the arbitrator" and "dissatisfaction with the resolution of that question could properly be remedied only by filing exceptions[.]" Id. Therefore, in our view, use of the term "validly obtained" to permit collateral attack beyond that which has been specifically confirmed in VA Central Office is unprecedented, and we refuse for all the reasons for which collateral attack and indirect review of arbitration awards in unfair labor practice proceedings have been denied to extend collateral attack and indirect review beyond VA Central Office, as we have viewed that decision in VA Medical Center.

Similarly, we find unwarranted the Judge's reliance on the court's decision in AFGE v. FLRA. We view AFGE v. FLRA as merely affirming "the Authority's decision to permit such a challenge as a defense to an unfair labor practice." 850 F.2d at 786. We reject the Judge's extension of that decision beyond the circumstances of VA Central Office, which were presented to the court. We do not view the court's decision as authorizing collateral attack and indirect review of an arbitration award in an unfair labor practice proceeding more extensive than that expressly permitted by the Authority. More specifically, we do not understand the court's decision as authorizing the Authority to relitigate the Federal Circuit's denial of OPM's petition for review, particularly on a question not of statutory exclusion from the grievance procedure, but of the extent of the authority granted Arbitrator Smith by the parties in relation to the Bigelow grievance.

We also reject the Judge's reliance on AT&T Technologies v. Communications Workers and Devine v. Levin. In our view, these cases simply stand for the proposition that a party may timely raise a jurisdictional or substantive arbitrability question in a timely filed court proceeding either under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for the private sector, or section 7703 for the Federal sector. We find that neither case supports the Judge's conclusion that "[j]urisdiction, or arbitrability, may be raised at any time." Judge's Decision at 9. To the contrary, under section 301, claims relating to the jurisdiction of an arbitrator or the arbitrability of a grievance must be timely raised or they will be barred. For example, in Plumbers' Pension Fund Local 130 v. Domas Mechanical Contractors, 778 F.2d 1266, 1267 (7th Cir. 1985), the union sought enforcement of an arbitration award and the employer moved to dismiss on what it claimed were jurisdictional grounds relating to the award. The U.S. district court rejected the claim and enforced the award. On appeal, the U.S. Court of Appeals for the 7th Circuit refused to consider any of the employer's arguments relating to the validity of the award. Id. at 1268. The court held that the employer's failure to seek vacation of the award within the applicable limitation period "bar[red] it from challenging the [union's] enforcement of the award." Id. The court found that the case was controlled by the doctrine of the 7th Circuit that a "defendant's failure to move to vacate [an] arbitration award within the prescribed time period for such a motion precludes it from seeking affirmative relief in a subsequent action to enforce the award." Id. (quoting Teamsters Local No. 135 v. Jefferson Trucking Co., 628 F.2d 1023, 1025 (7th Cir. 1980), cert. denied, 449 U.S. 1125 (1981)). In Service Employees Local No. 36 v. Office Center Services, 670 F.2d 404 (3d Cir. 1982), the U.S. Court of Appeals for the 3d Circuit agreed with the 7th Circuit that defenses to the enforcement of an arbitration award must be raised within the period prescribed for actions to vacate an arbitration award rather than waiting to raise them as defenses in an action to confirm the award. Id. at 412; see also Carpenters Local 1020 v. FMC Corp., 724 F.2d 815 (9th Cir. 1984); Electrical Workers v. Ingram Manufacturing Co., 715 F.2d 886 (5th Cir. 1983) (finding that challenges to an arbitration award must be brought within the applicable limitation period).

With no cases cited to us under section 7703(d) allowing the jurisdiction of an arbitrator or the arbitrability of a grievance to be raised before the Federal Circuit other than in a timely action filed under section 7703, we refuse to hold that the analogous process in the Federal sector is any different from the private sector in that the policies favoring arbitration are identical in both sectors. In particular, we refuse to view the Federal sector differently from the private sector on the ground that the agency employer has no right to judicial review under section 7703. We view this scheme to be a deliberate choice by Congress to further the policy of arbitration as a final and binding means of expeditiously resolving labor disputes. Consequently, we refuse to frustrate that deliberate choice and that policy by permitting the question of the Arbitrator's jurisdiction to be litigated in the unfair labor practice proceeding when the Federal Circuit has rejected OPM's petition for review. Stated succinctly, the proper forum for the challenge to the jurisdiction of Arbitrator Smith was the Federal Circuit. The Agency cannot now attack the Arbitrator's contractual jurisdiction in the unfair labor practice proceeding.

Furthermore, the Judge's finding that the Federal Circuit's decision was not res judicata and could not bar the claim that the Arbitrator was without jurisdiction is simply without support. Under the principle of res judicata, a valid, final judgment operates as a bar and prevents relitigation of all grounds for recovery that were available to the parties before the particular court rendering the judgment in relation to the same claim, regardless of whether all grounds for recovery were judicially determined. 1B Moore's Federal Practice 0.405. As the U.S. Supreme Court has explained:

The general rule of res judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose."

Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597 (1948) (quoting Cromwell v. County of Sac, 94 U.S. 351, 352 (1897)). Although the Respondent was not a party to the action before the Federal Circuit, in view of the statutory scheme of section 7703(d) in which the Director of OPM represents the interests of the Federal government, we find that there is privity between the Respondent and the Director of OPM and the res judicata effect of the Federal Circuit's denial of the petition for review of the Arbitrator's award applies to the Respondent to bar it from contesting the validity of the award. Furthermore, if it is the validity of the Federal Circuit's judgment that is being questioned, that issue must be raised, not before the Authority, but before the Federal Circuit as the court that rendered the judgment. 1B Moore's Federal Practice 0.405. Moreover, any reliance on the claimed lack of jurisdiction of the Arbitrator is misplaced. To avoid the application of the doctrine of res judicata on jurisdictional grounds, it must be established that the Federal Circuit lacked jurisdiction in order to invalidate the judgment. Id. The doctrine cannot be avoided by claiming that the Federal Circuit judgment is erroneous because the Arbitrator did not have jurisdiction. See id.

Finally, we reject the Judge's reliance on Arbitrator Jaffe's award and the Authority's decision denying exceptions to Arbitrator Jaffe's award in Social Security Administration II. In our view, both decisions made clear that they were not to affect any arbitration award that had become final and binding. "Arbitrator Jaffe specifically stated that he had no authority to determine the weight to be given to Arbitrator Smith's prior awards in Authority proceedings[.]" 33 FLRA at 753 (citing Jaffe's award at 79-80). The Authority also specifically indicated that the Authority's decision did not alter or affect any award of Arbitrator Smith that had become final and binding under section 7122 of the Statute. Id. at 753-54.

The Respondent is correct that the Authority in Social Security Administration II only cited the instances of awards becoming final as a result of no timely exceptions having been filed or exceptions to the awards having been denied by the Authority and did not cite the instance of an award relating to an adverse action becoming final as a result of the Federal Circuit's denial of a petition for review of the award. However, the Authority's examples of the means by which awards became final and binding were not intended to be an exhaustive list, but merely reflected the types of awards that it had dealt with at that point in the protracted dispute between the parties. At the time of the decision in Social Security Administration II, the Authority was unaware that the protracted dispute also involved an award relating to a removal covered by 5 U.S.C. § 7512. However, given the emphasis by the Authority that its decision was not to affect or alter awards that had become final in accordance with section 7122 of the Statute, it is clear to us that the means by which an award became final was not relevant.

It is clear that Arbitrator Smith's award in this case became final and binding under section 7122 of the Statute as a result of the Federal Circuit's denial of OPM's petition for review before the date of either Arbitrator Jaffe's award or the Authority's decision in Social Security Administration II. Consequently, the Judge's use of Arbitrator Jaffe's award and the Authority's decision in Social Security Administration II to collaterally attack Arbitrator Smith's final and binding award is directly contrary to both Jaffe's award and the Authority's decision in Social Security Administration II and provides no support for his decision to dismiss the complaint.

In sum, we find no basis for permitting collateral attack and indirect review of Arbitrator Smith's award. Because it is undisputed that the Respondent failed and refused to comply with Arbitrator Smith's September 12, 1986, award, in the words of the Ninth Circuit, we have little difficulty in holding that the studied refusal of the Respondent to abide by Arbitrator Smith's final arbitration award is an unfair labor practice. We conclude that the Respondent violated section 7116(a)(1) and (8) of the Statute, as alleged in the complaint, and we will issue an appropriate remedial order.

VI. Order

Pursuant to section 2423.29 of our Rules and Regulations and section 7118, we order that Department of Health and Human Services, Social Security 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 Justin C. Smith's September 12, 1986, award after the U.S. Court of Appeals for the Federal Circuit on August 31, 1987, denied the Office of Personnel Management's petition for review of that award in Horner v. Bigelow, Misc. Docket No. 178 (Fed. Cir. Aug. 31, 1987).

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their 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 September 12, 1986, award of Arbitrator Smith, ordering that Kirk Bigelow be reinstated with backpay.

(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, AFL-CIO, 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 Commissioner of the Social Security Administration 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 our Rules and Regulations, notify the Regional Director, Washington, D.C., Regional Office, 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 Justin C. Smith's September 12, 1986, award after the U.S. Court of Appeals for the Federal Circuit on August 31, 1987, denied the Office of Personnel Management's petition for review of that award in Horner v. Bigelow, Misc. Docket No. 178 (Fed. Cir. Aug. 31, 1987).

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 fully comply with the September 12, 1986, award of Arbitrator Smith, ordering that Kirk Bigelow be reinstated with backpay.

(Agency)

DATED: By: