File 2: ALJ's Decision

[ v58 p159 ]

Office of Administrative Law Judges



Charging Party

Case No. AT-CA-01-0743

Lt. Col. Bryan E. Morgan, JA
For the Respondent

Terry W. Garnett, Representative
For the Charging Party

Gwen Y. Anderson, Esquire
For the General Counsel, FLRA

Before:     PAUL B. LANG
Administrative Law Judge


      This case arises out of an unfair labor practice charge by the Association of Civilian Technicians, Inc., North Alabama Chapter ("Union") against the Alabama State Military Department, Alabama Army National Guard, Montgomery, Alabama ("Respondent") and a Complaint and Notice of Hearing alleging that the Respondent violated §§7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §7101, et seq. ("Statute") by failing to comply with an arbitration award regarding the uniform allowance for certain of its employees.

      The General Counsel has filed a motion for summary judgment which has been opposed by the Respondent. The respective positions of the parties are as set forth below.

Position of General Counsel

      The General Counsel maintains that on February 23, 2001, Arbitrator Bernard Marcus issued an award to the effect that the Respondent was contractually obligated to furnish two additional sets of Battle Dress Uniforms ("BDU's") to all bargaining unit personnel. In his decision the arbitrator specifically addressed the issue of the legality of the contract provision at issue and ruled that, in implementing the terms of that provision, the Respondent would not be in violation of federal law. [ v58 p160 ] The Respondent has not requested that the Authority review the arbitrator's award [n1]  but has refused to comply with its terms in spite of repeated requests that it do so.

Position of Respondent

      In its response to the motion for summary judgment the Respondent does not contest the General Counsel's assertions as to the arbitration award. However, the Respondent maintains that there is a material issue of fact that precludes summary judgment. The alleged issue of fact is whether the expenditure of funds for additional uniforms would violate Army regulations and various federal statutes dealing with appropriations and expenditures.

      In support of its position the Respondent has submitted an affidavit from The Adjutant General of the State of Alabama stating that, while he acknowledges his responsibility to comply with the arbitration award, he is legally prohibited from doing so. The affidavit also states that the Respondent has submitted a request to the National Guard Bureau for an amendment to the table of allowances so as to authorize the issuance of two additional BDU's as required by the arbitration award.

      The Respondent has also submitted an additional brief in which it restates its contention that it is prohibited by law from providing its employees additional BDU's pending a change in the governing Army regulations. Respondent requests that no decision be issued pending action on its request for permission to issue the uniforms.

Findings of Fact

      The pertinent facts have been admitted by the Respondent both in its Answer to the Complaint and in its response to the motion for summary judgment. [n2]  They are as follows:

1.     The Union and Respondent are parties to a collective bargaining agreement.
2.     The Union filed a grievance under the collective bargaining agreement concerning the issuance of two additional BDU's. That grievance was eventually submitted to arbitration.
3.     On February 23, 2001, arbitrator Bernard Marcus issued an award in which the Union's grievance was sustained (G.C. Ex. 1(c)). The arbitrator ordered the Respondent to furnish two additional BDU's to its bargaining unit employees. In the words of the arbitrator, "The award is conditioned on there being funds available to pay for the negotiated two additional BDUs and is subject to the comments set forth in the text of the Award." [n3] 
4.     By letter dated August 1, 2001 (G.C. Ex. 1(f)), Respondent informed the Union that the Respondent's appeal of the arbitrator's decision to the Department of Defense Field Advisory Service was denied because the Department of Defense had approved the collective bargaining agreement upon which the award was based.
5.     Respondent has not sought review of the arbitrator's award by the Authority.

Discussion and Analysis

      After careful consideration of all memoranda and evidence submitted by the parties as well as applicable law, it is determined that there are no material issues of fact and that the General Counsel's Motion for Summary Judgment should be granted on the grounds set forth below.

Summary Judgment is Appropriate

      In numerous cases, including Department of Veterans Affairs, Veterans Affairs Medical Center, 50 FLRA 220, 222 (1995), the Authority has confirmed that, in considering motions for summary judgment which have been filed pursuant to 5 C.F.R. §2423.27, it will apply the principles which have been established with regard to Rule 56 of the Federal Rules of Civil Procedure. Rule 56 states in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, [ v58 p161 ] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

      The Respondent has characterized the issue of the legal implications of the arbitration award as a question of fact. That characterization is clearly incorrect. A legal dispute cannot be transformed into an issue of fact (let alone an issue of material fact within the meaning of Rule 56) by an affidavit which does no more than reiterate a legal argument.The Respondent has admitted that it has not implemented the award and defends its position by an attack on its merits. The merits of the arbitrator's decision, whether legal or factual, is not a proper issue in an unfair labor practice proceeding. The sole mechanism for challenging an arbitration award is by filing exceptions with the Authority pursuant to §7122(a) of the Statute within thirty days of the date of the service of the award. If exceptions are not timely filed the award shall, in the words of §7122(b) of the Statute, be:

. . . . final and binding. An agency shall take the actions required by an arbitrator's final award.

The Respondent has, for whatever reason, failed to file exceptions in accordance with the Statute and cannot now challenge the arbitrator's decision.

      The Respondent's argument that this case should be held in abeyance pending action by the Department of the Army on the requested change in the uniform allowance is unpersuasive. As shown above, the arbitrator's award allows the Respondent the option of negotiating with the Union in the event that it is unable to provide the additional uniforms at present. The arbitrator suggested a number of alternative arrangements including the issuance of coveralls. If, as maintained by the Respondent in its supplemental brief, the technicians are in a civilian status during the regular work week, there should be no impediment to their wearing civilian coveralls while so employed.

The Remedy

      The General Counsel maintains that the appropriate remedy is an order directing the Respondent to supply two additional sets of BDU's to each bargaining unit employee. However, that is not the remedy that the arbitrator ordered and the General Counsel, like the Respondent, must take the award as it stands. The arbitrator's remedy is somewhat equivocal, taking into account the possibility of a lack of sufficient funds to provide the additional uniforms as well as the alternative of providing coveralls in place of additional BDU's.

      After careful consideration of the memoranda and evidence, I have concluded that the Respondent violated §7116(a)(1) and (8) of the Statute by failing to implement the arbitration award in FMCS Case No. 00-16841 and that the motion of the General Counsel should be granted. Accordingly, I recommend that the Authority issue the following Order:


      IT IS ORDERED that the motion of the General Counsel for summary judgment be, and hereby is, granted.

      IT IS FURTHER ORDERED, pursuant to §2423.41(c) of the Authority Rules and Regulations and §7118(a)(7) of the Federal Service Labor-Management Relations Statute, that the Alabama State Military Department, Alabama Army National Guard, Montgomery, Alabama, shall:

      1.     Cease and desist from:

           (a)     Failing and refusing to comply with the final and binding award of Arbitrator Bernard Marcus dated February 23, 2001.

           (b)     In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their 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)     Provide all of its employees in the bargaining unit with two additional sets of Battle Dress Uniforms ("BDU's") provided that there are sufficient funds to do so.

           (b)     In the event that there are insufficient funds to provide the additional sets of BDU's, negotiate with the Union as to alternative arrangements including:

(i)     partial implementation of the arbitration award at present and final implementation at a later time;
(ii)     an advance against the budget of the following year; and
(iii)     the issuance of additional coveralls in place of the BDU's.

           (c)     Post at its facilities throughout the State of Alabama where bargaining unit employees are located, copies of the attached Notice on forms to be [ v58 p162 ] furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Adjutant General, 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.

           (d)     Pursuant to §2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., March 18, 2002.

Administrative Law Judge