[ v61 p825 ]

61 FLRA No. 165

UNITED STATES
DEPARTMENT OF LABOR
WASHINGTON, D.C.
(Respondent/Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Charging Party)

WA-CA-04-0077

_____

DECISION AND ORDER

September 29, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member [n1] 

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 (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions.

      The complaint alleges that the Agency violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by refusing to schedule an arbitration proceeding on a pending grievance and thus denying the Charging Party access to arbitration provided by the collective bargaining agreement. The Judge found that the Agency violated § 7116(a)(1) and (8) of the Statute, as alleged, and directed that the Agency post a notice signed by the Secretary of Labor.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order, as modified, for the reasons set forth below.

II.     Background and Judge's Decision

      The Charging Party filed a grievance under the collective bargaining agreement on behalf of an employee concerning the termination of her employment. A representative of the Respondent advised the Charging Party that the matter was not grievable because the separation of the employee occurred during her probationary period.

      When the grievance was not resolved, the Charging Party invoked arbitration. The Charging Party sent an e-mail message to the Acting Director of the Respondent's Office of Employee and Labor-Management Relations, stating that the collective bargaining agreement allowed the Respondent to raise issues of arbitrability before the arbitrator, and that the grievance involves the same issues as an earlier case where the Charging Party successfully defeated a removal action. Subsequently, the Acting Director of the Respondent's Office of Employee and Labor-Management Relations refused to schedule an arbitration proceeding on the pending grievance.

      The Charging Party filed the charge, and the General Counsel issued the complaint in the instant case. The complaint alleges that the Agency violated § 7116(a)(1) and (8) of the Statute by refusing to schedule an arbitration proceeding on a pending grievance and thus denying the Charging Party access to arbitration provided by the collective bargaining agreement.

      The Judge found that the employee was a probationary employee at the time of her separation, and noted that probationary employees cannot grieve their separations. See, e.g., United States Department of the Air Force, Nellis Air Force Base, Las Vegas, Nevada, 46 FLRA 1323, 1326-27 (1993). However, the Judge noted that 5 U.S.C. § 7121(a)(1) allows a party to submit arbitrability questions to an arbitrator for resolution. Here, the Charging Party wished to submit the arbitrability question of the employee's grievance to an arbitrator for resolution, but the Agency refused to take part in scheduling an arbitration hearing so the issue could be submitted. Because the Charging Party properly could demand to submit the arbitrability question to an arbitrator for resolution, the Judge found that the Agency violated § 7116(a)(1) and (8) of the Statute, as alleged. The Judge ordered that the Agency take certain remedial action. As relevant here, the Judge directed that the Agency post a notice signed by the Secretary of Labor. [n2]  [ v61 p826 ]

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent takes exception to that portion of the proposed remedy concerning the signing of the notice. The Respondent asserts that the Authority has consistently held that when the posting of a violation notice is ordered, the notice should be signed "by the highest official of the activity responsible for the violation." Exceptions at 4 (quoting United States Dep't of Transportation, FAA, Standiford, Air Traffic Control Tower, Louisville, Kentucky, Fed'l Aviation Admin., 53 FLRA 312, 322 (1997) and citing United States Dep't of Veterans Affairs, Wash., D.C., 48 FLRA 1400, 1402 (1994)).

      The Respondent asserts that the allegations in the complaint and the Judge's finding of a violation were based on the actions of employees in the Office of Employee and Labor-Management Relations, an office which is under the supervision of the Deputy Director for Human Resources. See Exceptions at 4. In this connection, the Respondent contends that "[h]aving the Deputy Director for Human Resources sign the posting will effectuate the purposes of the Statute by signifying that the Department acknowledges its obligations under the Statute and intends to comply with those obligations." Id. at 4-5.

B.     GC's Opposition

      The GC argues that the Judge properly recommended that the notice posting be signed by the Secretary of Labor.

IV.     Analysis and Conclusions

     The Highest Official of the Office of Employee
     and Labor-Management Relations Should Sign
     the Notice

      The Authority typically directs that a posting be signed by the highest official of the activity responsible for the violation because, when the highest official signs a notice, a respondent indicates that it acknowledges and intends to comply its statutory obligations. See United States Dep't of Veterans Affairs, 56 FLRA 696, 699 (2000). The complaint in this case alleges that the Director of the Office of Employee and Labor-Management Relations refused to schedule an arbitration proceeding on a pending grievance and thus denied the Charging Party access to arbitration provided by the collective bargaining agreement. Moreover, nothing in the case implicates any Agency officials outside the Office of Employee and Labor-Management Relations. Accordingly, we modify the Judge's proposed order to reflect that the highest official of that office should sign the notice. See, e.g., United States Dep't of Labor, Wash., D.C., 61 FLRA 603 (2006) (Member Pope concurring to avoid impasse).

V.     Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Statute, it is hereby ordered that the United States Department of Labor, Washington, D.C., shall:

      1.      Cease and desist from:

           (a)      Failing or refusing to proceed to arbitration on the question of the arbitrability of the grievance filed by the American Federation of Government Employees, Local