United States, Department of Homeland Security, Border and Transportation Security Directorate , Bureau of Immigration and Customs Enforcement, Philadelphia District, Philadelphia, Pennsylvania (Respondent) and American Federation of Government Employees, Local 2012 (Charging Party)

[ v60 p993 ]

60 FLRA No. 178

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION
SECURITY DIRECTORATE
BUREAU OF IMMIGRATION
AND CUSTOMS ENFORCEMENT
PHILADELPHIA, DISTRICT
PHILADELPHIA, PENNSYLVANIA
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2012
(Charging Party)

BN-CA-04-0463

_____

DECISION AND ORDER

May 31, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with a final and binding arbitration award. [n1] The Judge granted the General Counsel's motion for summary judgment after the Respondent failed to file a timely answer to the complaint and failed to respond to the General Counsel's motion. The Respondent excepts to the Judge's finding of a violation. [n2] 

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.

      In so ruling, we find that 5 C.F.R. § 2429.5 bars our consideration of the Respondent's claims that it had no "authority or responsibility for resolving the backpay issue" and that it should not "be ordered to post a notice concerning an issue over which [it] had no control or involvement." Exceptions at 3. Under 5 C.F.R. § 2429.5, the Authority will not consider "any issue, which was not presented in the proceedings before the . . . Administrative Law Judge[.]" As the Respondent is the party identified in the complaint as responsible for the alleged violation, its claims denying responsibility should have been raised to the Administrative Law Judge. As the Respondent's claims are raised for the first time in its exceptions, the claims are not properly before us.

II.      Order

      Pursuant to § 2423.41 of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the United States Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Immigration and Customs Enforcement, Philadelphia District, Philadelphia, Pennsylvania, shall:

      1.      Cease and desist from:

           (a)      Failing or refusing to promptly and fully comply with the final and binding award of Arbitrator Kinard Lang dated December 23, 2003, to the extent consistent with the provisions of the Back Pay Act, 5 U.S.C. § 5596(b), by failing or refusing to make David W. Savina whole for all lost wages, overtime, allowances and differentials.

           (b)      In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

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

           (a)      Promptly and fully comply with the final and binding award of Arbitrator Kinard Lang dated December 23, 2003, and subject to the provisions of the Back Pay Act, 5 U.S.C. § 5596(b), by making David W. Savina whole for all lost wages, overtime, allowances and differentials.

           (b)      Post at facilities at the United States Department of Homeland Security, Border and Transportation [ v60 p994 ] Security Directorate, Bureau of Immigration and Customs Enforcement, Philadelphia District, Philadelphia, Pennsylvania, where bargaining unit employees represented by the American Federation of Government Employees, Local 2012 are located, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt, such forms shall be signed by the senior management representative at the aforesaid facilities and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced or covered by any other material.

           (c)      Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, of the Boston 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
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Immigration and Customs Enforcement, Philadelphia District, Philadelphia, Pennsylvania has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT fail or refuse to promptly and fully comply with the final and binding award of Arbitrator Kinard Lang dated December 23, 2003, to the extent consistent with the provisions of the Back Pay Act, 5 U.S.C. § 5596(b), by failing or refusing to make David W. Savina whole for all lost wages, overtime, allowances and differentials.

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 promptly and fully comply with the final and binding award of Arbitrator Kinard Lang dated December 23, 2003, and subject to the provisions of the Back Pay Act, 5 U.S.C. § 5596(b), by making David W. Savina whole for all lost wages, overtime, allowances and differentials.

                               ________________________
                               (Activity)

Dated:_____________ 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 its provisions, they may communicate directly with the Regional Director, Boston Regional Office, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Suite 472, Boston, MA 02222, and whose telephone number is: 617-565-5100.


File 1: Authority's Decision in 60 FLRA No. 178
File 2: ALJ's Decision


Footnote # 1 for 60 FLRA No. 178 - Authority's Decision

   Although the arbitration award resolved a grievance over an adverse action covered by § 7121(f) of the Statute, the Authority may find a violation of § 7116(a)(1) and (8) for noncompliance with such awards. See Dep't