54:0480(48)AR - - DOT, FAA & National Air Traffic Controllers Association - - 1998 FLRAdec AR - - v54 p480



[ v54 p480 ]
54:0480(48)AR
The decision of the Authority follows:


54 FLRA No. 48

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

(Union)

0-AR-2833

_____

DECISION

June 22, 1998

_____

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

Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Earle W. Hockenberry filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

Arbitrator Hockenberry found that the Agency had failed to comply with an earlier arbitration award of Arbitrator Charles H. Frost and ordered that the Agency comply with that award. We conclude that the Agency fails to establish that the award of Arbitrator Hockenberry is deficient. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrators' Awards

The grievant is an air traffic controller. The grievant resigned, but subsequently filed a grievance contending that her resignation was involuntary and coerced. The grievance was submitted to Arbitrator Frost for resolution.

Arbitrator Frost ruled that the grievant's resignation was involuntary and ordered her reinstated to her former position. However, because of evidence of a positive drug test of the grievant presented in the arbitration hearing, Arbitrator Frost conditioned her reinstatement. He ordered the grievant reinstated subject to four random drug tests to be administered during the first year of her reinstatement. Arbitrator Frost retained jurisdiction to resolve any questions over the interpretation or application of the award, but no question was submitted.

The Agency reinstated the grievant, but on the basis of the positive drug test that was disclosed in the hearing before Arbitrator Frost, the Agency charged her with the use of marijuana and proposed her removal. Subsequently, the Agency offered to hold the removal action in abeyance if the grievant agreed to participate in an agency-approved drug rehabilitation program. The Union filed a grievance contending that the Agency's actions failed to comply with the Frost award. For reasons that are not stated in the record, the parties submitted the grievance to Arbitrator Hockenberry, rather than to Arbitrator Frost.

Arbitrator Hockenberry concluded that the Frost award was final and binding on the parties. He noted that the Government had not petitioned the U.S. Court of Appeals for the Federal Circuit for review of the Frost award. Consequently, he refused to consider the Agency's arguments that the conditions of the grievant's reinstatement were contrary to law and regulation. He found that this result was also supported by the doctrine of res judicata. In addition, Arbitrator Hockenberry ruled that the Agency's disputed actions were inconsistent with the Frost award and ordered that the Agency accept and comply with that award.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Hockenberry award is contrary to law and regulation. The Agency argues that by canceling the Agency's mandatory drug rehabilitation program for the grievant, the Hockenberry award is contrary to Pub. L. No. 102-143 (Omnibus Transportation Employee Testing Act of 1991), Executive Order No. 12564 (Drug-Free Federal Workplace), and agency regulations. The Agency notes that under section 614 of Pub. L. No. 102-143, no individual who is determined to have used a controlled substance can serve as an air traffic controller unless such individual has completed the prescribed rehabilitation program. The Agency notes that Executive Order No. 12584 states that no agency shall allow any employee to remain on duty in a sensitive position who is found to use illegal drugs, prior to successful completion of rehabilitation. The Agency notes that under agency regulations, the determination of the type of rehabilitation assistance required is to be made by responsible agency officials. Although the Agency notes that the drug tests required by the Frost award would not meet the requirements for rehabilitation, the Agency maintains that the Frost award was not contrary to law or regulation and did not preclude the Agency from taking the necessary actions required by law and regulation. In addition, the Agency maintains that it complied with the Frost award.

The Agency also contends that the award is deficient because of Arbitrator Hockenberry's reliance on the doctrine of res judicata. The Agency argues that the Authority has held that the doctrine does not apply to arbitration awards.

B. Union's Opposition

The Union contends that the Agency's exception is untimely because it relates to the Frost award. Alternatively, the Union contends that the Agency fails to establish that the Hockenberry award is deficient.

IV. Analysis and Conclusions (1)

A. Arbitrator Hockenberry's Reliance on Res Judicata is not Deficient

The Agency's reliance on Authority decisions concerning the doctrine of res judicata is misplaced. What these decisions mean is that absent a specific mandate of the parties, an arbitrator cannot be required to apply the doctrine. They do not mean that an arbitrator errs in applying the concept of res judicata by refusing to reopen a final arbitration award in a matter between the same parties, under the same collective bargaining agreement, and with the same facts and evidence. See U.S. Department of the Air Force, Air Logistics Center, Tinker Air Force Base, Oklahoma, 41 FLRA 303, 305 (1991). Consequently, the Agency fails to establish that the Hockenberry award is deficient because of his reliance on the concept of res judicata. Accordingly, we deny this exception.

B. The Hockenberry Award is not Contrary to Law or Regulation

Arbitrator Hockenberry ruled that: (1) the Frost award was final and binding; (2) he would not consider the Agency's arguments that the terms of the grievant's reinstatement under the Frost award were contrary to law or regulation; and (3) the Agency had not complied with the Frost award. Consequently, he ordered the Agency to comply with the Frost award. Although the Agency claims that it complied with the Frost award and that it is not claiming that the Frost award is deficient, it is clear that the Agency's contentions that the terms of the grievant's reinstatement are contrary to law and regulation challenge the Frost award. As the Agency was required under the Statute to take the action required by the Frost award, the Agency fails to establish that the Hockenberry award is contrary to law or regulation.

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. See U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494-95 (1990) (and cases cited in decision). As a result, both the Authority and the courts refuse to allow an agency respondent to collaterally attack a final and binding arbitration award as part of an unfair labor practice proceeding for refusing to comply with the award. See U.S. Department of Justice v. FLRA, 792 F.2d 25 (2d Cir. 1986), enforcing 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); United States Marshals Service v. FLRA, 778 F.2d 1432 (9th Cir. 1985), enforcing United States Marshals Service, 13 FLRA 351 (1983); Department of the Air Force v. FLRA, 775 F.2d 727, 733 (6th Cir. 1985), aff'g United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984).

When an 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. See, e.g., United States Army, Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA 200 (1986) (AG Publications Center). Review of such awards is by means of an appeal to the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703. Under section 7703, agencies aggrieved by the arbitrator's award in these matters are not entitled to obtain judicial review. Instead, the Director of the Office of Personnel Management (OPM) may seek judicial review of the award in accordance with section 7703(d).

Under this statutory scheme, an award relating to a section 7121(f) matter becomes final and binding upon completion of the appeal process in accordance with section 7703(d). See AG Publications Center, 22 FLRA at 207. Accordingly, the Frost award became final and binding when the Director of OPM failed to take any action with respect to the Frost award and the appeal period expired.(2)

Once an award becomes final and binding, differences in review forums become meaningless, and the Authority enforces compliance with an arbitrator's final award. See id. Thus, it is clear that rather than filing a grievance, had the Union filed an unfair labor practice alleging that the Agency had failed to comply with the Frost award, the Authority would not have permitted the Agency to collaterally attack the Frost award. See Department of Health and Human Services, Social Security Administration, 41 FLRA 755 (1991), enforced sub nom. Department of Health and Human Services v. FLRA, 976 F.2d 1409 (D.C. Cir. 1992).

It is equally clear that the Authority would not have entertained the Agency's exception that the Frost award was contrary to law or regulation if the parties had returned to Arbitrator Frost rather than submitting the compliance dispute to Arbitrator Hockenberry. If the parties had invoked Arbitrator Frost's retained jurisdiction for purposes of interpretation or application of his award and he had found that the Agency's disputed actions did not comply with his original award, we would have dismissed the exception as untimely. See, e.g., U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, 52 FLRA 1471, 1474 (1997) (only when an arbitrator modifies an award in such a way as to give rise to the deficiencies alleged in the exception does the modified award commence a new filing period for exceptions).

A similar result obtains when the parties submit the compliance question to another arbitrator. See Patent and Trademark Office and Patent Office Professional Association, 22 FLRA 7 (1986) (POPA). In POPA, the parties submitted to Arbitrator Lubic a grievance claiming that the agency had failed to comply with an arbitration award of Arbitrator Ross. Arbitrator Lubic ruled that as the agency's exceptions to the award of Arbitrator Ross were untimely filed with the Authority, the Ross award was final and binding under the Statute. Accordingly, Arbitrator Lubic ordered the agency to implement the Ross award.

The Authority denied the agency's exception claiming that the Lubic award was deficient because the Ross award was unenforceable. The Authority ruled that when a party fails to timely file exceptions to an arbitration award, the award becomes final and binding and the agency must take the action required by the award. The Authority explained that "[s]ince an award becomes final and must be implemented if the parties fail to file an exception within the required period, the necessary implication is that a party can no longer challenge the award by any means. It has become final for all purposes." 22 FLRA at 10 (quoting Department of the Air Force v. FLRA, 775 F.2d at 735)).

On the basis of the Statute and POPA, we find that the award of Arbitrator Hockenberry is fully consistent with law and regulation in directing the Agency to comply with the award of Arbitrator Frost. Accordingly, we deny this exception.(3)

In denying this exception, we emphasize several points. As a result of the hearing before Arbitrator Frost, the Agency became aware of the grievant's positive drug test. Following the issuance of the Frost award, the Agency was faced with an order to reinstate the grievant to controller duties with only four random drug tests during the first year of her reinstatement. If the Agency had any concerns about reinstating her to controller duties under those conditions, the Agency could have either raised them before Arbitrator Frost or asked the Director of OPM to seek review of the award in the Federal Circuit in accordance with section 7703(d). The Agency did neither. As a consequence of the Agency's inaction, the Frost award became final and binding, and section 7122(b) of the Statute mandated that the Agency comply with the Frost award. Arbitrator Hockenberry simply ordered the Agency to comply with the Frost award, and, in denying the Agency's exceptions, we simply enforce the mandate of the Statute.

We do not address whether the terms of the Frost award are deficient. As the court noted in Department of Health and Human Services v. FLRA, 976 F.2d at 1413, "opportunity knocks but once" in these cases, and the Agency failed to avail itself of that opportunity. We also do not address, and our decision does not affect, the authority of the Agency to take any action with respect to the grievant based on matters that are unrelated to compliance with the Frost award.

V. Decision

The Agency's exceptions are denied.




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

1. The Authority's case control office ordered the Agency to show cause why its exceptions should not be dismissed because the Hockenberry award relates to the grievant's removal. We agree with the Agency's response that the Authority has jurisdiction because the grievant's removal had only been proposed.