53:0487(54)CA - - EEOC, Washington D.C. and AFGE Local 3637 - - 1997 FLRAdec CA - - v53 p487



[ v53 p487 ]
53:0487(54)CA
The decision of the Authority follows:


53 FLRA No. 54

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

WASHINGTON, D.C.

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3637

(Charging Party/Union)

DA-CA-50198

_____

DECISION AND ORDER

September 30, 1997

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. No opposition or cross-exceptions were filed.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to comply with an arbitrator's award. The Judge concluded that the Respondent violated the Statute as alleged in the complaint. On consideration of the Judge's decision and the entire record in this case, and for the reasons expressed below, we conclude that the Union's charge upon which the complaint was based was untimely filed. Accordingly, we dismiss the complaint.

II. Background and Judge's Decision

A. The Facts

The facts, which are set forth in the Judge's decision, are briefly summarized here. The Respondent terminated an employee in its New Orleans District Office for unacceptable performance. The Union filed a grievance over the removal and when the grievance was not resolved, it invoked arbitration over the matter.

The grievance was heard by Arbitrator Joseph Lazar on October 13, 1993. However, because the Respondent refused to recognize Lazar as an arbitrator, it appeared at the hearing only to contest Lazar's authority to hear the case and did not participate further in the proceeding.(1) On January 24, 1994, Lazar issued his award finding that the Respondent violated the relevant collective bargaining agreement provisions and ordering the grievant reinstated with back pay.

On or about February 23, 1994, the Respondent informed the Union that it would not honor the award. On March 4, 1994, the Respondent requested a clarification of Lazar's award and also requested that he reopen the case.(2) Lazar denied the requests on April 13, 1994. On April 19, 1994, the Union sent Respondent a request to comply with the award. The Respondent took no further action with respect to the award.(3)

On May 3, 1994, the grievant and the National Council filed a complaint in the United States District Court for the Eastern District of Louisiana (District Court) seeking to enforce Lazar's award. The District Court dismissed the complaint for lack of subject matter jurisdiction on December 7, 1994. On December 30, 1994, the union filed a ULP charge with the Authority's Dallas Regional Office and the Dallas Regional Director subsequently issued a complaint.

B. The Judge's Decision

The General Counsel and the Union moved for summary judgment, which the Judge granted. The Judge concluded that the Respondent failed to comply with a final and binding arbitration award and thereby violated section 7116(a)(1) and (8) of the Statute. Among other things, the Judge ordered that the Respondent fully comply with the arbitrator's award. In granting summary judgment, the Judge rejected the Respondent's arguments that the ULP charge was untimely filed.

1. The Timeliness Issue

The Respondent contended before the Judge that the award was final and binding on February 23, 1994, 30 days after the award's issuance, and that the Statute's 6-month filing period for filing ULP charges commenced on that date. Accordingly, it argued that the charge filed on December 30, 1994, was untimely.(4)

The Judge found the charge to be timely filed. First, he found that the failure to comply with the award was a "continuing violation", and not time barred by section 7118(a)(4)(A). In support, the Judge cited Department of the Navy and Department of the Navy, Portsmouth Naval Shipyard, 21 FLRA 195 (1986), vacated on other grounds, 28 FLRA 209 (1987) (Portsmouth Naval Shipyard). Alternatively, relying on Department of the Air Force, Headquarters 832D Combat Support Group, DPCE, Luke Air Force Base, Arizona, 24 FLRA 1021 (1986) (Luke AFB), he found that the filing period was equitably tolled from May 3, 1994 (when the union filed its enforcement action in District Court) to December 7, 1994 (when the District Court action was dismissed).

2. Merits

The Judge found that the Respondent violated the Statute as alleged. First, the Judge noted that the Respondent admitted that it did not comply with the award. Second, he rejected the Respondent's defense that the award was invalid because the arbitrator lacked jurisdiction. The Judge cited Department of Health and Human Services v. FLRA, 976 F.2d 1409 (D.C. Cir. 1992) (HHS v. FLRA) for the proposition that alleged contractual impediments to an arbitrator's jurisdiction cannot be raised collaterally in a ULP proceeding. The Judge dismissed the Respondent's contention that this case falls under Veterans Administration Central Office, Washington D.C., 27 FLRA 835, 838-40 (1987) (VA Central Office), affirmed sub nom. AFGE v. FLRA, 850 F.2d 782 (D.C. Cir. 1988), where the Authority held that claims of statutory impediments to an arbitrator's authority could be raised to defeat finality in a ULP proceeding. The Judge found that none of the Respondent's arguments raised a justiciable statutory issue with respect to the arbitrator's jurisdiction.

III. The Respondent's Exceptions(5)

A. The Respondent's Exceptions With Respect to the Timeliness of the Union's Charge

The Respondent first contends that the Judge erred in finding that its alleged failure to comply with the arbitrator's award was a continuing violation and not subject to the statutory limitations period. In this regard, the Respondent asserts that the Judge was not "bound" by Portsmouth Naval Shipyard because the Authority's decision was subsequently reversed on other grounds by the First Circuit, Department of the Navy v. FLRA, 815 F.2d 797 (1st Cir. 1987), and on remand from the court the Authority vacated its order. Department of the Navy and Department of the Navy, Portsmouth Naval Shipyard, 28 FLRA 209, 210 (1987). According to the Respondent, the Judge created a new exception to section 7118(a)(4)'s 6-month limitation period without statutory support. The Respondent also contends that the instant case is distinguishable on its facts from Portsmouth Naval Shipyard.

Secondly, the Respondent contends that the time limit for filing a ULP charge should not be equitably tolled in this case. This case is distinguishable from Luke AFB, in the Respondent's view, because the union in Luke AFB attempted to file timely ULP charges, whereas the Union here did not file any action in a proper forum within the limitations period. In addition, the Respondent argues that the Supreme Court cases relied upon by the Authority in Luke AFB are inapposite. In this regard, the Respondent notes that in Burnett v. New York Central Railroad Co., 380 U.S. 424 (1965) (Burnett), the plaintiff timely filed an action in a forum with jurisdiction, although the case was dismissed for improper venue. With respect to American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974), the Respondent states that tolling of the limitations period in that case was expressly provided for by statute. Neither of these circumstances is present in the instant case according to the Respondent.

B. The Respondent's Exceptions With Respect to the Merits of the Case

On the merits, the Respondent argues that the Judge erred by not requiring the General Counsel to prove that Lazar was an arbitrator authorized to hear the dispute in question. The Respondent reiterates its argument that Lazar was not an arbitrator as defined by section 7122 of the Statute. The Respondent also contends that it may collaterally attack Lazar's authority to issue the award in the King grievance because Lazar's status as an arbitrator is at issue. According to the Respondent, its objections to Lazar's authority are "statutory," not contractual and, therefore, the Authority's decision in Department of Health and Human Services, Social Security Administration, 41 FLRA 755 (1991) (DHHS), aff'd, 976 F.2d 1409 (D.C. Cir. 1992), is distinguishable.

IV. Analysis and Conclusions

For the reasons explained below, we find that the charge upon which the complaint was based was filed outside the time limitations of section 7118(a)(4) of the Statute. Therefore, we dismiss the complaint.

In so concluding, we first find that the limitations period for filing the ULP charge began when the award became final and binding on February 23, 1994. As the charge was not filed until December 30, 1994, it was filed beyond the 6-month period prescribed in section 7118(a)(4). Having concluded that the complaint was not timely filed, we then analyze whether the failure to comply with the arbitrator's award constituted a "continuing violation," or whether, in the circumstances of this case, the limitations period of section 7118(a)(4) should be equitably tolled.

A. The Limitations Period Commenced on February 23, 1994

Under section 7122, an arbitration award becomes final and binding after the period for filing exceptions expires and no exceptions have been filed or after timely filed exceptions have been denied by the Authority. DHHS, 41 FLRA at 765-66. Analogously, in cases such as this one arising under section 7121(f) of the Statute, an arbitration award becomes final and binding after completion of the appeal process provided at 5 U.S.C. § 7703(d). Id. at 767 (citing United States Army, Adjutant General Publications Center, St. Louis, Mo., 22 FLRA 200, 207 (1986) (Adjutant General Publications Center)). The appeal process is complete upon the expiration of the 30-day period in which to appeal where no appeal is taken, Adjutant General Publications Center, 22 FLRA at 207-208, or upon final judicial action on appeal, DHHS, 41 FLRA at 767-68. No appeal of Lazar's award was taken to the Federal Circuit in this case.

In Luke AFB, the Authority determined that an agency's obligation to comply with an arbitrator's award begins when the award becomes final and binding (citing United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151, 153 (1984), aff'd, 775 F.2d 727 (6th Cir. 1985)). Luke AFB, 24 FLRA at 1025. The Authority further held that the 6-month period for filing a ULP charge alleging noncompliance with the arbitrator's award also commences at that time. 24 FLRA at 1025; accord Department of the Air Force v. FLRA, 775 F.2d 727, 732-33 (6th Cir. 1985).

Both the language of the Statute and established Authority precedent lead us to conclude that the limitations period for filing a ULP charge for failure to comply with an arbitrator's award commences on the date the award becomes final and binding. Such a rule puts all parties to the arbitration proceedings on notice as to to their respective rights and obligations. Therefore, the award became final and binding 30 days after its issuance, i.e, on February 23, 1994.

B. The "Continuing Violation" Theory

1. Case Precedent and Rationale

Prior to considering whether the "continuing violation" theory is applicable here, we review precedent developed under the Statute and examine the rationale supporting the "continuing violation" theory under an analogous provision of the NLRA.

a. Authority Precedent

In finding that the Respondent's failure to comply with Lazar's award was a continuing violation, the Judge relied on Portsmouth Naval Shipyard, the only case in which the Authority applied such a theory. There the Authority adopted, without comment, the Judge's recommended decision and order, including his finding that "failure to comply with an arbitration award constitutes a continuing violation; thus, the six month statute of limitations cannot bar an action against the [Respondent]." 21 FLRA at 204 n.1. Portsmouth Naval Shipyard was subsequently reversed on other grounds by the U.S. Court of Appeals for the First Circuit. Department of the Navy v. FLRA, 815 F.2d 797 (1st Cir. 1987).

The Authority next addressed the application of section 7118(a)(4) in the context of an alleged refusal to comply with an arbitrator's award in Luke AFB. There, however, the Authority declined to apply a continuing violation theory. The Judge in that case had relied on a continuing violation theory to find the charge was not time barred even though it was filed more than 6 months after the arbitrator's award became final and binding. Luke AFB, 24 FLRA at 1035-1040. On exceptions, however, the Authority found the charge to be timely filed on different grounds, i.e., that in the circumstances of that case, the limitations period was equitably tolled. Id. at 1024-25.

Although it did not specifically address the Judge's use of a continuing violation theory, the Authority implicitly rejected such a theory in analyzing section 7118(a)(4)'s application in noncompliance cases. Id. As noted earlier, the Authority concluded that an agency's obligation to comply with an arbitrator's award begins when the award becomes final and binding; as a result, the 6-month period for filing a ULP charge alleging noncompliance with the arbitrator's award also commences at that time. Luke AFB, 24 FLRA at 1025.

The Authority has not subsequently applied a continuing violation theory in ULP cases.

b. Precedent and Rationale Supporting the "Continuing Violation" Theory Under the NLRA

As previously recognized by the Authority, section 7118(a)(4) is substantially identical to the limitations provisions of section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b),(6) and the Authority has looked to private sector precedent for guidance in applying section 7118(a)(4). U.S. Army Armament Research Development and Engineering Center, Picatinny Arsenal, New Jersey, 52 FLRA 527, 533-34 (1996) (Picatinny Arsenal). Although the National Labor Relations Board ("NLRB" or "Board") has applied a "continuing violation" theory to permit prosecution of certain ULP charges where the initial statutory violation occurred outside the limitations period, see e.g., NLRB v. Anchor Rome Mills, 228 F.2d 775 (5th Cir. 1956), recent Board precedent has disfavored its use.

The Supreme Court has recognized two policies underlying section 10(b) of the NLRA. These dual policies are to: (1) bar litigation over distant events; and (2) to stabilize existing bargaining relationships. Machinists Local 1424 v. NLRB, 362 U.S. 411, 419 (1960) (Machinists Local 1424). The Board has found that extending the period in which ULP charges may be filed through the application of a continuing violation theory undermines these policies. Chambersburg County Market, 293 NLRB 654, 655 (1989) (refusal to execute a collective bargaining agreement is not a continuing violation); A & L Underground, 302 NLRB 467, 468-69 (1991) (repudiation of a collective bargaining agreement is not a continuing violation).

The Board first found that a rule which tolerates delay in filing charges tends to impair the adjudication process. "[A] respondent's ability to prepare a defense is increasingly prejudiced as those circumstances [giving rise to the charge] become more distant in time and pertinent evidence grows increasingly stale." A & L Underground, 302 NLRB at 468-69 (citing Machinists Local 1424, 362 U.S. at 419). This is because as time passes "records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused." Machinists Local 1424, 362 U.S. at 419.

Second, according to the Board, applying a continuing violation theory injures the stability of collective bargaining relationships because the enforceable rights and obligations of the parties are allowed to remain an open question indefinitely. A & L Underground, 302 NLRB at 468. In that regard, a party has an interest in being able to conclude that its actions have passed without challenge and is, therefore, able to act accordingly. Id. As the Board has concluded, the continuing violation theory "fails to foster a climate in which both parties to a collective bargaining relationship are able to assess their obligations to each other expeditiously and with reasonable certainty, and it thereby impairs the statutory goal of stabilizing collective bargaining relationships." Id.

2. The Respondent's Failure to Comply With the Arbitrator's Award Is Not a Continuing Violation Subject to the Limitations Period of Section 7118(a)(4)

We find that the Supreme Court and the NLRB's interpretation of section 10(b) of the NLRA is sound and, as we have recognized in the past, germane to the application of section 7118(a)(4)(A). As a result, we conclude that section 7118(a)(4) of the Statute, like section 10(b) of the NLRA, is designed to effectuate the dual policies of stability of collective bargaining relationships and avoidance of stale litigation. We agree with the NLRB that application of a continuing violation theory tends to undermine these policy goals. Indiscriminately applying a continuing violation theory to instances of noncompliance with an arbitrator's award could subject a noncomplying party with indefinite liability. As the NLRB noted, stability is furthered when after a definite period a party may be assured that its conduct is no longer subject to legal challenge. A & L Underground, 302 NLRB at 468.

In addition, strict application of section 7118(a)(4) in noncompliance cases does not work undue hardship on the party seeking compliance. A party has the right to expect compliance with an arbitrator's award once it becomes final and binding. If a party believes that compliance is not being effectuated, it may take appropriate action. Options include filing a ULP or inquiring of the other party concerning the status of the arbitrator's award. If this latter course were chosen, a noncomplying party could not escape liability by assuring future compliance while letting the 6-month period run without effectuating compliance. Such conduct on the part of the noncomplying party would constitute concealment of its noncompliance and would be grounds for tolling the limitations period under section 7118(a)(4)(B).(7) In this way, and under other appropriate circumstances, as discussed below, the 6-month limitation period of section 7118(a)(4) is subject to tolling where the balance of the equities so require.

For these reasons, we conclude that the Respondent's failure to comply with Lazar's award is not a "continuing violation" of the Statute.(8)

C. Equitable Tolling

1. Case Precedent and Rationale

The union's charge was filed December 30, 1994, more than 10 months after the award became final and binding. Accordingly, unless the 6-month limitations period is tolled, the charge was untimely filed.(9) The doctrine of equitable tolling permits suspension of a statute of limitations under appropriate circumstances. Prior to deciding whether to apply the doctrine of equitable tolling in this case, we analyze equitable tolling cases decided under the Statute and consider Supreme Court and other precedent articulating the policies and purposes of equitable tolling.

a. Authority Precedent

Authority precedent establishes that the time limit in section 7118(a)(4)(A) is a statute of limitations and subject to equitable tolling. E.g., Picatinny Arsenal, 52 FLRA at 533-34. The Authority treated section 7118(a)(4)(A) as a statute of limitations in Luke AFB, the only case in which the Authority has applied the doctrine of equitable tolling. See id. at 533 n.4 (discussing Luke AFB, 24 FLRA at 1025-26).

In Luke AFB the Authority found that the statute of limitations should have been tolled because the union did not "sleep on its rights," but diligently sought to have the arbitrator's award enforced through appropriate mechanisms. 24 FLRA at 1026. The Authority found that the union was prevented, through no fault of its own, from filing an actionable charge within the statutory time frame.

The facts in Luke AFB were, in the Authority's words, "unique." 24 FLRA at 1026. The union had filed a ULP charge well within the 6-month period commencing on the date the award became final and binding. That charge was ultimately dismissed on the ground that agency exceptions to the award were pending before the Authority. The union continued to pursue the agency's compliance with the award through "numerous requests, meetings and ULP charges." Id. However, through a series of events, none of which were within its control, the union was "left without an actionable charge" filed within the 6-month period. Id. The Authority held that under these circumstances the limitations period should be equitably tolled and found the union's last ULP charge to be timely filed. Id.

b. Precedent and Rationale Supporting the Equitable Tolling Theory

In Burnett, the Supreme Court discussed the competing policy interests at work in the application of the doctrine of equitable tolling. The Court found that statutes of limitations are primarily designed to ensure fairness to defendants by "preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." 380 U.S. at 428 (internal quotations omitted). According to the Court, "even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and . . . the right to be free of stale claims in time comes to prevail over the right to prosecute them." Id. (internal quotations omitted).(10)

On the other hand, a defendant's right to be free of stale claims is "frequently outweighed . . . where the interests of justice require the vindication of the plaintiff's rights." Burnett, 380 U.S. at 428. Courts have applied the doctrine of equitable tolling and suspended statutes of limitations "where strict application [of the statute of limitations] would be inequitable." Phillips v. Heine, 984 F.2d 489, 491, (D.C. Cir. 1993).

Specifically addressing the statute of limitations found in section 10(b) of the NLRA, the First Circuit has stated that equitable tolling is "appropriate only when the circumstances that cause a plaintiff to miss a filing deadline are out of his [or her] hands." Kelley v. NLRB, 79 F.3d 1238, 1248 (1st Cir. 1996) (Kelley) (quoting from Heidemen v. PFL, Inc., 904 F.2d 1262, 1266 (8th Cir. 1990), cert. denied, 498 U.S. 1026 (1991). In Kelley, the court identified five factors that "[c]ourts generally weigh" in assessing claims for equitable tolling. 79 F.3d at 1248. Those factors are: (1) lack of actual notice of filing requirements; (2) lack of constructive knowledge of filing requirements; (3) diligence in pursuing one's rights; (4) absence of prejudice to the defendant and (5) a plaintiff's reasonableness in remaining ignorant of the notice requirement.

Factors 1, 2, and 5 all concern plaintiff's knowledge (actual or constructive) of the filing requirements. With respect to those factors, courts generally impute constructive knowledge to plaintiffs who consult with an attorney. Kelley, 79 F.3d at 1249. Further, the general rule is that "those who deal with the Government are expected to know the law . . . ." Heckler v. Community Health Services, 467 U.S. 51, 63 (1984). Factor 3 addresses how assiduously a plaintiff pursued his or her rights in a given case.

Lastly, factor 4 is to be considered "once [another] factor that might justify such tolling is identified, [but, the lack of prejudice to a defendant] is not an independent basis for invoking the doctrine and sanctioning deviations from established procedures." Kelley, 79 F.3d at 1250 (quoting Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984).

2. The Circumstances of This Case Do Not Warrant Tolling of the Limitations Period

a. Filing a Related Action in a Forum That Clearly Lacks Jurisdiction Will Not Toll the Limitation Period of Section 7118(a)(4)

The Judge's rationale for equitably tolling the 6-month limitation period was that through the District Court action, filed within the relevant time frame but dismissed for lack of jurisdiction, the Union sought appropriate relief and put the Respondent on notice of its intent to litigate the matter.(11) The Judge cited Luke AFB in support of his conclusion.

Luke AFB is distinguishable from the instant case. Specifically, in Luke AFB the union diligently pursued its remedy in the proper forum, but through no fault of its own was prevented from filing a charge within the limitations period. In tolling the limitations period in Luke AFB, the Authority relied on the Supreme Court's decision in Burnett. There the Supreme Court found equitable tolling appropriate where a plaintiff sought relief timely in a court having jurisdiction, but where the suit was dismissed for improper venue. 380 U.S. at 434-35. In contrast, here, the Union sought relief in a forum that was without jurisdiction.

The Supreme Court has not decided a case where equitable tolling was sought because an action was filed in a forum without jurisdiction. However, those courts of appeal that have addressed the issue have generally concluded that commencement of an action in a forum that "clearly lacks jurisdiction" will not toll a statute of limitations. Shofer v. Hack Co., 970 F.2d 1316, 1319 (4th Cir. 1992) (Shofer); see also Silverberg v. Thomson McKinnon Securities Inc., 787 F.2d 1079, 1082 (6th Cir. 1987) (Silverberg); Fox v. Eaton Corp., 615 F.2d 716, 719 (6th Cir. 1980), cert. denied 450 U.S. 935 (1981) (Fox); cf. U.S. v. Maryland Casulty Co., 573 F.2d 245, 247 (5th Cir. 1978) (filing of federal claim in state court did not interrupt federal statute of limitations). In both Shofer and Fox, the courts expressly distinguished Burnett on the ground that the alternate forum in Burnett had jurisdiction over the matter at issue but the case had been dismissed for improper venue.

In Fox, the Sixth Circuit cited the general rule against tolling, but found that tolling was appropriate in that case because the lack of jurisdiction in the state court where the action was initially filed "was far from clear." 615 F.2d at 719; see also Farrell v. Automobile Club of Michigan, 870 F.2d 1129, 1132-33 (6th Cir. 1989) (where tolling is requested based on filing in wrong forum, the critical issue is whether forum "clearly lacked jurisdiction").(12) In finding that the jurisdictional question was unclear, the majority in Fox noted that there was disagreement among the Federal courts as to whether Federal jurisdiction was exclusive with respect to the substantive matter at issue. 615 F.2d at 719.(13)

Noting virtual unanimity in the Circuits which have considered the issue, we hold that filing a related action in a forum that clearly lacks jurisdiction will not toll the limitations period of section 7118(a)(4) of the Statute.

b. The District Court Clearly Lacked Jurisdiction Over the Union's Enforcement Action

We find that the District Court clearly lacked jurisdiction over the Union's action to enforce Lazar's award. Accordingly, we find the Union's charge, filed more than 10 months after the arbitrator's award became final and binding, was barred by section 7118(a)(4).

First, and unlike the situation in Fox, there was no uncertainty present with respect to where jurisdiction lay. As the District Court found when dismissing the Union's complaint, federal courts are in complete accord that the Authority has exclusive jurisdiction over unfair labor practices. National Council of EEOC Locals No. 216 v. EEOC, No. 94-1464 (E.D. La. Dec. 7, 1994), 1994 WL688961 at *3-4.(14) The District Court relied on Columbia Power Trades v. U.S. Department of Energy, 671 F.2d 325 (9th Cir. 1982), where the court specifically found that it did not have jurisdiction to enforce an arbitrator's award. The District court also cited Karahalios v. NFFE, Local 1263, 489 U.S. 539 (1989) (Karahalios). Karahalios, which concerned a duty of fair representation issue, also held that the FLRA is the exclusive forum to remedy federal sector unfair labor practices.

Second, the Union asserted no arguable basis for invoking the District Court's jurisdiction. In its complaint in the District Court, the Union cited four bases for jurisdiction, none of which is a jurisdiction conferring provision. The first was section 7122 of the Statute, which provides only that exceptions to arbitrator's awards may be filed with the Authority. The second was section 9 of the Federal Arbitration Act, 9 U.S.C. § 9, which does not operate as a grant of jurisdiction. There must be an independent basis of jurisdiction before a district court may entertain petitions under the Federal Arbitration Act. Harry Hoffman Printing, Inc. v. Graphic Communications, Local 261, 912 F.2d 608, 611 (2nd Cir. 1990) and cases cited therein. Third, the Union cited Fed. R. Civ. P. 57 and 65. But again, the Federal Rules of Civil Procedure do not provide an independent ground for subject matter jurisdiction over an action for which there is no other basis for jurisdiction. Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 70 (2d Cir. 1990); see also Fed. R. Civ. P. 82 ("rules shall not be construed to extend or limit the jurisdiction of the United States district courts . . . ."). Fourth and finally, the Union cited 5 U.S.C. § 5596, the Back Pay Act. The Back Pay Act is not a jurisdictional statute; its application depends on a prior finding of appropriate jurisdiction. Mitchell v. U.S., 930 F.2d 893, 896 n.3 (Fed. Cir. 1991)

c. No Other Reason Exists for Tolling the Limitations Period

Finally, the factors weighed by courts in analyzing whether to equitably toll a statute of limitations do not support tolling the period in this case. There can be no creditable claim of lack of notice with respect to proper filing requirements, including the appropriate forum, in this case. The Union was represented by counsel, who it is assumed knows the law. Kelley, 79 F.3d at 1249. The Union itself is a local of a large federal sector union, presumably familiar with federal sector labor law. Further, unlike the union in Luke AFB, which repeatedly attempted to pursue its claim in the proper forum, here the Union initially pursued its claim only in the District Court. The Union did not exercise the kind of diligence here that the Authority found compelling in Luke AFB. Failure to ascertain the forum of appropriate jurisdiction demonstrates a lack of due diligence. Covey, 865 F.2d at 662.

Although we recognize that there is no apparent prejudice to the Agency, as noted above, lack of prejudice is not an independent basis for invoking equitable tolling. Baldwin County Welcome Center v. Brown, 466 U.S. at 152.

We thus conclude that the Union's ULP charge was filed more than 6 months after the limitations period for filing under section 7118(a)(4) of the Statute commenced. There being no reason to toll the limitations period, the charge was untimely filed and the complaint based upon the charge must be dismissed.

IV. Order

The complaint is dismissed.(15)




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, WASHINGTON, DC

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3637

Charging Party

Case No. DA-CA-50198

James M. Sober, Esquire
For the Respondent

Charlotte A. Dye, Esquire
For the General Counsel
Sidney M. Bach, Esquire
For the Charging Party

Before: JESSE ETELSON
Administrative Law Judge

DECISION

Statement of the Case

The General Counsel of the Federal Labor Relations Authority (the Authority), by the Acting Regional Director, Dallas Region, issued a complaint alleging that the Respondent (EEOC) violated sections 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to comply with an arbitrator's award. EEOC's answer admits the jurisdictional and other preliminary allegations of the complaint and admits that EEOC has refused to comply with the award. However, EEOC denies that it had any legal obligation to comply, asserting that the individual who rendered the award was not an arbitrator with legitimate authority to arbitrate any matter between EEOC and the Charging Party (the Union).

EEOC requested a subpoena, and a series of motions followed, including a motion by EEOC for a pre-hearing telephone conference with the administrative law judge assigned to hear the case. Such a conference was held. It resulted in the parties' agreement to an order postponing the scheduled hearing indefinitely and, instead, setting a schedule for the filing of motions for summary judgment by Counsel for the General Counsel and by the Union and for EEOC's filing of its opposition to the motions. The parties have filed their respective documents pursuant to that schedule.

Timeliness of the Unfair Labor Practice Charge

Under section 7118(a)(4) of the Statute, an unfair labor practice charge must normally be filed within six months of the occurrence of the alleged unfair labor practice. The disputed arbitration award in this case was issued by Arbitrator Joseph Lazar on January 24, 1994. Prior to the award, EEOC had informed the Union that it would not recognize any decision by Arbitrator Lazar regarding Schreiner King, the grievant. Further, on or about February 23, 1994, EEOC reaffirmed in a telephone conversation that it would not honor the award. On March 4, 1994, EEOC submitted to Arbitrator Lazar a motion for clarification and a motion to reopen the hearing. The Arbitrator denied both motions on April 13, 1994. On April 19, 1994, the Union sent EEOC a request to comply with the underlying award.

On May 3, 1994, the National Council for EEOC Locals No. 216, American Federation of Government Employees, AFL-CIO, and grievant King filed a complaint in the United States District Court for the Eastern District of Louisiana to enforce the arbitration award.(1) On December 7, 1994, the court entered a judgment in EEOC's favor, dismissing the complaint for lack of subject matter jurisdiction. On December 30, 1994, the Union filed the unfair labor practice charge in this case.

In Department of the Navy and Department of the Navy, Portsmouth Naval Shipyard (Portsmouth, New Hampshire), 21 FLRA 195 (1986), vacated on other grounds, 28 FLRA 209 (1987), the Authority adopted the findings and conclusions of Administra-tive Law Judge Eli Nash, Jr. Judge Nash had rejected the agency's contention that the section 7118(a)(4) limitation barred an allegation adding a new responsible party for an alleged failure to comply with an arbitration award. Judge Nash reasoned in part that a failure to comply with an award is a "continuing violation." Id. at 204 n.1.

Not long after its Portsmouth decision, the Authority had before it another case involving an alleged failure to comply with an arbitrator's award. The charge had been filed more than six months after the Authority dismissed the agency's exceptions to the award (such dismissal making the award final and binding(2)). During the period before the union filed the charge on which a complaint was ultimately issued, it had filed a series of charges alleging that the agency had failed to fully comply with the award. The union had filed its second charge upon withdrawing its first. The Authority's Regional Director, affirmed by its General Counsel, dismissed the union's second charge as premature because the agency's exceptions to the award were still pending. The union filed a third charge, but withdrew it shortly before filing its fourth and final charge. During this extended period the union also continued to communicate with the agency in connection with their dispute. The Authority held that the union's diligence in attempting to secure compliance with the award warranted suspension, on equitable grounds, of the 6-month filing period prescribed by section 7118(a)(4). Department of the Air Force, Headquarters 832D Combat Support Group, DPCE, Luke Air Force Base, Arizona, 24 FLRA 1021 (1986) (Luke AFB).

The "continuing violation" theory was available to the Authority in Luke AFB, and the administrative law judge in that case had relied in part on that theory. However, the Authority decided to base its "timeliness determination . . . on somewhat different reasons[.]" (Id. at 1024), those relating to the principle of equitable suspension of the filing period. One might argue that the Authority's failure to find a "continuing violation" in Luke AFB signifies an intention to abandon that theory in arbitration award cases. See also Dept. of the Air Force v. FLRA, 775 F.2d 727, 732-33 (6th Cir. 1985). However, absent an express or more clearly implied abandonment, I consider myself bound by the continuing precedential force of the Authority's action in Portsmouth. I therefore find that the allegation here that EEOC failed to comply with the award, alleges a continuing violation that is not time-barred.

Irrespective of the viability of the "continuing violation" theory, I also find that the principle of equitable suspension of the filing period is applicable here. Thus, like the union in Luke AFB, the Union (through its parent affiliate) sought persistently but unsuccessfully to obtain the desired relief before filing the charge on which the complaint is based. While here the Union chose the wrong forum, its efforts were as well calculated to keep the agency aware of its pursuit of compliance with the award as were the efforts of the union in Luke AFB. Therefore, the filing period was tolled by the May 3, 1994, filing of the Federal court action and remained suspended until that action was dismissed on December 7, 1994. The Union's December 30, 1994, charge was timely, then, whether the 6-month period is deemed to have begun on February 23 (30 days after the award was issued in the absence of a petition for judicial review) or on May 13, 1995 (30 days after Arbitrator Lazar denied EEOC's motions for clarification and for reopening.)(3)

Existence of Genuine Issues of Material Fact

In opposition to the motions for summary judgment, EEOC asserts that Mr. Lazar, whom EEOC refers to as the "putative arbitrator," did not have jurisdiction to function as the Arbitrator of the grievance in which he rendered the disputed award. The bases of this assertion are that Lazar had been disqualified as Arbitrator and that he was selected unilaterally by the Union and thus was not appointed under any provision of the parties' collective bargaining agreement. EEOC also argues that, in the circumstances of this case, the Authority may consider the merits of the award and that, on such examination, the Authority should deny enforcement of the award because of the Arbitrator's bias in conducting the hearing and because the award has no factual basis.

For the purpose of deciding whether the procedural technique of summary judgment is appropriate here, I accept all of EEOC's factual assertions.(4) I must decide whether, in asserting these facts in opposition to the motions for summary judgment, EEOC has demonstrated the existence of any genuine issues of material fact. Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee, 50 FLRA 220, 222 (1995).

The fundamental issue that EEOC seeks to raise in opposition, that it seeks to litigate in this proceeding, and that underlies all of its other arguments, is the asserted lack of jurisdiction of the Arbitrator. Recognizing that the Authority, with court approval, has concluded that claims of contractual impediments to an arbitrator's jurisdiction cannot be raised collaterally in an unfair labor practice proceeding, Dept. of Health and Human Services v. FLRA, 976 F.2d 1409 (D.C. Cir. 1992)(DHHS v. FLRA), EEOC seeks to present its jurisdictional argument as one that asserts a statutory rather than a contractual impediment to Lazar's jurisdiction.

EEOC contends that such a distinction is applicable here because it challenges "the arbitrator's very jurisdiction," a phrase used by the District of Columbia Circuit to character-ize the Authority decision it affirmed in AFGE v. FLRA, 850 F.2d 782 at 785 (1986). In that case, an arbitrator had ordered the Veterans Administration to reinstate a "title 38 employee." Section 4110 of U.S.C. Title 38 provides exclusive procedures available to "title 38 employees" for handling disputes regarding discipline for their alleged professional misconduct. Those procedures do not include arbitration. Section 4119 of Title 38 U.S. makes the provisions of 38 U.S.C. § 4110 applicable to matters concerning "title 38 employees" in the event that § 4110 conflicts with any provision of title 5 (of which the Statute is part). The Authority therefore held that 38 U.S.C. § 4110 took precedence over section 7121 of the Statute, and that the arbitration award could not be enforced. Veterans Administration Central Office, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 27 FLRA 835, 840 (1987) (VA Central Office).

Notwithstanding the District of Columbia Circuit's broad characterization, in AFGE v. FLRA, of the Authority's decision in VA Central Office, the Authority itself has construed its holding in that case much more narrowly. Thus, in Department of Health and Human Services, Social Security Administration, 41 FLRA 755 (1991) (DHHS), the Authority stated 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." Id. at 768. Further, the Authority did "not view the court's decision [in AFGE v. FLRA, affirming VA Central Office] as authorizing collateral attack and indirect review of an award in an unfair labor practice proceeding more extensively than that expressly permitted by the Authority." Id. at 770. Consequently, the Authority refused to permit the agency to attack an award collaterally on the ground that the arbitrator lacked jurisdiction because of an asserted failure to receive authority from the parties. The Authority also rejected the suggestion that its use of the phrase, "validly obtained arbitration awards," in VA Central Office, indicated an intention to permit collateral attacks based on lack of arbitral jurisdiction in any but VA Central Office situations. DHHS at 769-770.

The District of Columbia Circuit affirmed the Authority's DHHS decision, concluding in relevant part that the Authority properly distinguished a challenge to an arbitrator's jurisdiction predicated on "arbitrability"--the claim that the arbitrator has exceeded his authority under an agreement--from a VA Central Office-type challenge "based on another federal statute." DHHS v. FLRA at 1414.

With this court-approved distinction in mind, EEOC's attempt to characterize its jurisdictional attack as one falling within VA Central Office rather than DHHS cannot prevail. EEOC contends that Lazar was not an "arbitrator" as contemplated by the Statute, and seeks to place the burden on the General Counsel to prove that he was. However, the Statute does not define "arbitrator." In the absence of a statutory definition, an arbitrator, as commonly understood in Federal sector labor relations terms, is anyone selected pursuant to a negotiated grievance procedure.

Mr. Lazar was selected to serve as one of three permanent "National Arbitrators" the parties' negotiated grievance procedure provide for. EEOC has consistently argued that Lazar's selection and his subsequent assertion of jurisdiction were improper because EEOC did not participate in the striking of names from the list the Federal Mediation and Conciliation Service provided (pursuant to the negotiated grievance procedure) to determine the three "National Arbitrators.(5) Although EEOC appears to take the position that Lazar's selection was not "pursuant to" the negotiated grievance procedure, it does not deny that the negotiated grievance procedure governs the process of selecting the arbitrator for the Schreiner King grievance. EEOC's challenge really goes to the question of whether the selection process used here conformed to the provisions of the negotiated procedure. Thus, EEOC argued in another case, Equal Employment Opportunity Commission and American Federation of Government Employees, National Council of EEOC Locals No. 216, 48 FLRA 822 (1993) that Lazar's assertion of jurisdiction as a permanent national arbitrator failed to draw its essence from the parties' collective bargaining agreement.

Despite the form in which EEOC now presents its jurisdictional challenge, the challenge still goes to the contractual validity of the selection, for the focus of the attack remains the validity of Lazar's selection in relation to the contract's selection procedure. The new clothes in which this challenge is attired are either transparent or nonexistent.

EEOC also contends that Lazar's statutory authority to hear and decide the grievance ceased when EEOC sent him a notice of disqualification under the negotiated grievance procedure, which notice, EEOC contends, Lazar improperly failed to adjudicate. Like the underlying jurisdictional challenge, however, the challenge based on EEOC's notice of disqualification rests on contractual, not statutory grounds, and may not form the basis for collateral attack in an unfair labor practice proceeding. Cf. U.S. Department of Veterans Affairs, Medical Center, Allen Park, Michigan, 49 FLRA 405, 427 (1994) (DVA Med. Ctr.) (no collateral attack permitted on the basis that the arbitrator had improperly retained jurisdiction).

Having failed to make a persuasive case that it has raised a justiciable statutory issue with respect to the Arbitrator's jurisdiction, EEOC's further arguments concerning the Arbitrator's alleged bias and the award's lack of factual basis also fail to raise issues of material fact. The fact that EEOC challenges the Arbitrator's jurisdiction does not warrant the Authority's review of the merits of the award. Were EEOC to have successfully challenged the Arbitrator's jurisdiction, the appropriate result presumably would have been to vacate the award, not to review its merits. It makes no more sense to review the merits of the award, including a claim of bias, where, as here, the attempted challenge has failed. See DVA Med. Ctr. at 427.

It appears, therefore, that there are no genuine issues of material fact and that the General Counsel and the Charging Party are entitled to summary judgment. Accordingly, I make the following findings of fact, conclusions of law, and recommendation.

Findings of Fact

The Union, a labor organization, is an agent of the exclusive representative of employees of EEOC, an agency, in a unit of employees appropriate for collective bargaining. The Union and EEOC are parties to a collective bargaining agree-ment covering employees in the bargaining unit.

On January 24, 1994, Joseph Lazar, the individual selected as the Arbitrator of a grievance filed under the negotiated grievance procedure of the parties' collective bargaining agreement, issued a decision and award in that grievance, finding that EEOC violated the collective bargaining agreement by its "removal" (termination) of bargaining unit employee Schreiner King. In his award, Arbitrator Lazar directed that King be returned to his position with back pay for the entire period since his wrongful termination, after deducting outside earnings, without loss of seniority or accrued benefits. The award directs EEOC to implement the award within 30 days.

No action was taken under section 7121(f) of the Statute to obtain judicial review of the award. On April 13, 1994, Arbitrator Lazar denied EEOC's motions for clarification and to reopen the record. On April 19, 1994, the Union requested EEOC to comply with the award. EEOC has failed to perform the acts ordered by the award.

Discussion and Conclusions

An agency's failure to comply with a final and binding arbitrator's award prevents an employee from exercising the protected activity of filing and processing grievances under a collective bargaining agreement. Such failure therefore constitutes an unlawful interference with the employee's right to exercise that protected activity, in violation of section 7116(a)(1) of the Statute. United States Army, Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA 200, 207-08 (1986). Failure to comply with such an award also violates section 7116(a)(8) of the Statute. DHHS at 765, 774.

The award in question here became final and binding on February 23, 1994, 30 days after the unreviewed award was issued. See 5 U.S.C. §§ 7121(f) and 7703. EEOC admits its failure to comply with the award, disputing only the legitimacy of the award and its legal obligation to comply with it. EEOC's defenses have no merit. See DHHS and discussion of "Existence of Genuine Issues of Material Fact," above. I therefore conclude that EEOC violated sections 7116(a)(1) and (8) of the Statute and recommend that the Authority issue the following order.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Equal Employment Opportunity Commission, Washington, D.C., shall:

1. Cease and desist from:

(a) Failing and refusing to implement the January 24, 1994, award of Arbitrator Joseph Lazar.

  1. (b) In any like or related manner interfere with, restrain, or coerce its employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

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

(a) Comply fully with the January 24, 1994, award of Arbitrator Lazar ordering that Schreiner King be reinstated with back pay

(b) Post at its facilities where bargaining unit employees represented by National Council of EEO Locals No. 216, 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 Director of its Employee and Labor Relations Division, Human Resources Management Services, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and 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, 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.

Issued, Washington, DC, November 3, 1995

__________________________

JESSE ETELSON
Administrative Law Judge

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 to implement the January 24, 1994, award of Arbitrator Joseph Lazar.

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

WE WILL comply fully with the January 24, 1994, award of Arbitrator Lazar ordering that Schreiner King be reinstated with back pay.

______________________
(Activity)

Date: __________ 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Regional Office, whose address is: 525 Griffin Street, Suite 926, LB-107, Dallas, Texas 75202-1906, and whose telephone number is (214) 767-4996.




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


Authority's Footnotes Follow:

1. The dispute over Lazar's selection has been the subject of previous Authority decisions. American Federation of Government Employees, National Council of EEOC Locals No. 216 and Equal Employment Opportunity Commission, 47 FLRA 525 (1993) (EEOC I); Equal Employment Opportunity Commission and American Federation of Government Employees, National Council of EEOC Locals No. 216, 48 FLRA 822, (1993), reconsideration denied, 49 FLRA 7 (1994), remanded, No. 94-1168 (D.C. Cir. Nov. 14, 1995), reh'g denied (Feb. 6, 1996) (EEOC II). The background of the dispute is set out in some detail in EEOC I. 47 FLRA at 526-27. The Authority is issuing its decision today in the remand of EEOC II. Equal Employment Opportunity Commission and American Federation of Government Employees, National Council of EEOC Locals No. 216, 53 FLRA No. 53 (1997).

2. After reserving its contention that Lazar was not a validly selected arbitrator, the Respondent contended that the arbitrator issued his award prematurely (before all submissions were received), that the award was unsupported by record evidence, and that the union misled the arbitrator. Union Motion for Summary Judgment, Exh. 11.

3. Arbitration awards concerning terminations for unacceptable performance under 5 U.S.C. Chapter 43 are not subject to the Authority's exceptions procedure under section 7122 of the Statute, but are subject to direct judicial review under 5 U.S.C. § 7703. 5 U.S.C. § 7121(f). Section 7703 permits the Office of Personnel Management (OPM), but not the employing agency, to seek review in the Federal Circuit if OPM determines that the arbitrator erred in interpreting civil service law and the ruling has a significant impact on civil service law. 5 U.S.C. § 7703(d). Further, the granting of an OPM petition is in the discretion of the court. Id. In this case, the Respondent attempted but failed to obtain an OPM appeal to the Federal Circuit. Exceptions at 14.

4. Section 7118(a)(4) of the Statute states:

(A) Except as provided in subparagraph (B) of this paragraph, no complaint shall be issued on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority.

(B) If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to in subparagraph (A) of this paragraph by reason of--

(i) any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or

(ii) any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period,

the General Counsel may issue a complaint based on the charge if the charge was filed during the 6-month period beginning on the day of the discovery by the person of the alleged unfair labor practice.

5. No opposition or cross exceptions were filed by either the Union or the General Counsel. After EEOC II was remanded to the Authority, parties to all related cases, including this one, were given an opportunity to supplement their submissions. Both the Respondent and the Union replied, but the Union's response addressed only the Judge's merits determination, asserting that Lazar's's award in this case was final and binding, and thus not subject to collateral attack.

6. The express exceptions to the 6-month rule found at section 7118(a)(4)(B) essentially codify case law developed under section 10(b). See, e.g., Don Burgess Construction Corporation, 227 NLRB 765 (1977), enforced 596 F.2d 378 (9th Cir.), cert. denied, 444 U.S. 940 (1979).

7. There was no such concealment here. The Union had clear and unequivocable notice of the Respondent's intent not to comply with the award. The Respondent continually informed the Union that it did not recognize Lazar's authority, and on or about February 23, 1994, specifically notified the Union that it would not honor Lazar's award in this case. See Judge's decision at 2.

8. As noted above, we believe that Luke AFB effectively overruled Portsmouth Naval Shipyard with respect to the applicability of a continuing violation theory. Nonetheless even if Portsmouth Naval Shipyard has any viability, it will no longer be followed to the extent it is inconsistent with the decision here.

9. The complaint in the case alleged that the Respondent's noncompliance began on April 19, 1994, when the Union, after the Arbitrator denied the Respondent's request to reopen the proceeding, formally requested Respondent's compliance. As discussed above, we find that the period commenced when the award became final and binding. Nonetheless, even assuming that the limitations period began in April 1994, the December 30, 1994, charge would still be outside the 6-month limitation period.

10. We also note that the Supreme Court has found that the statute of limitations in section 10(b) of the NLRA is intended to maintain the stability of collective bargaining relationships, as well as to prevent stale litigation. Machinists Local 1424, 362 U.S. at 419.

11. The District Court action was filed by the Union's parent organization, the National Council.

12. Judge Celebrezze dissented in Fox, stating that the principles of Burnett should not be extended in any case where the initial filing is in any court without jurisdiction. 615 F.2d at 721.

13. But see Valenzuela v. Kraft, Inc., 801 F.2d 1170 (9th Cir. 1986). Citing Fox, the Ninth Circuit found the argument that filing in a forum without subject matter jurisdiction will not toll a statute of limitations "unpersuasive." 801 F.2d at 1175. However, the court characterized Fox as tolling the statute of limitations where plaintiff "mistakenly but reasonably filed in a court without subject matter jurisdiction." Id. (emphasis added). Accordingly, we do not read the Ninth Circuit as rejecting the general rule that filing in a forum which is clearly without jurisdiction will not toll a statute of limitations.

14. The District Court's decision was not published.

15. In light of the disposition of this case, it is not necessary to address the Respondent's other defenses to its refusal to comply with Lazar's award.


ALJ's Footnotes Follow:

1. The National Council for EEOC Locals No. 216 is the exclusive representative of a unit of employees appropriate for collective bargaining. The Union is an agent of the National Council for purposes of representing unit employees at EEOC's New Orleans, Louisiana facility, where grievant King was employed.

2. See Department of the Treasury, United States Customs Service, New York Region, New York, New York, 21 FLRA 999, 1002 (1986).

3. It is also at least arguable that the 6-month period began to run on February 23, w