44:1362(112)CA - - VA, Dwight D. Eisenhower Medical Center, Leavenworth, KS and AFGE Local 85 - - 1992 FLRAdec CA - - v44 p1362
[ v44 p1362 ]
The decision of the Authority follows:
44 FLRA No. 112
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF VETERANS AFFAIRS
DWIGHT D. EISENHOWER MEDICAL CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
May 27, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision finding 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 comply with an arbitration award as required by sections 7121 and 7122 of the Statute. The Judge granted the General Counsel's motion for summary judgment and recommended that the Respondent be ordered to take appropriate remedial action. The Respondent filed exceptions to the Judge's decision. The General Counsel filed a motion to strike Respondent's brief filed with its exceptions or, in the alternative, an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the Judge's rulings made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.(*)
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Dwight D. Eisenhower Medical Center, Leavenworth, Kansas shall:
1. Cease and desist from:
(a) Failing and refusing to abide by the final and binding award of Arbitrator William O. Eisler in FMCS Case No. 84K/26248.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Pay all unit employees of the Canteen Service and the Cemetery Service at the Medical Center's facility in Leavenworth, Kansas, the Environmental Differential Pay (EDP) ordered by Arbitrator William O. Eisler in his award in FMCS Case No. 84K/26248.
(b) Post on all bulletin boards of all services within the "Recognition and Coverage" provision of the Supplemental Agreement 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 Director of the Dwight D. Eisenhower Medical Center, 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 insure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver 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 or refuse to comply with a final and binding arbitration award in FMCS Case No. 84K/26248 that awarded the Canteen and Cemetery unit employees represented by the American Federation of Government Employees, Local 85, Environmental Differential Pay for exposure to airborne asbestos.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL immediately pay the unit employees of the Canteen and Cemetery Services the Environmental Differential Pay ordered in the Arbitrator's Award in FMCS Case No. 84K/26248.
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 any of its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO, 80204 and whose telephone number is: (303) 844-5224.
(If blank, the decision does not have footnotes.)
*/ We agree with the General Counsel's contention that the portions of the record before the Arbitrator that are cited in the Agency's exceptions and the statement on page 7 of the Respondent's brief regarding the common supervisor of the employees involved in this case are not properly before the Authority. Section 2429.5 of our Regulations provides that the Authority will not consider evidence that was not presented in the proceedings before the Administrative Law Judge. Accordingly, as the cited material referred to above was not presented in the proceeding before the Administrative Law Judge, we will grant the General Counsel's motion to strike those references. In all other respects, we deny the General Counsel's motion to strike Respondent's brief. In particular, insofar as the General Counsel contends that the Respondent's brief fails to comply with section 2423.27(a) of the Authority's Rules and Regulations by failing to provide citations to the record, we conclude that the exceptions are adequate for us to identify the Respondent's objections to the Judge's decision. Accordingly, the Respondent's exceptions and its brief in support of its exceptions satisfies the requirements of section 2423.27. See, for example, U.S. Department of Veterans Affairs Medical Center, Long Beach, California, 39 FLRA 1347 n.* (1991).