Headquarters, U.S. Army Communications Command, Et Al., Fort Huachuca, Arizona (Activity) and American Federation of Government Employees, Local 1662 (Union)  

 2 FLRA No. 101
 
 HEADQUARTERS, U.S. ARMY COMMUNICATIONS
 COMMAND, ET AL., FORT HUACHUCA,
 ARIZONA
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 1662
 Union
 
                                            Case No. 0-MC-1
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A REQUEST BY THE UNION THAT
 THE AUTHORITY PETITION A UNITED STATES COURT OF APPEALS FOR ENFORCEMENT
 OF THE AWARD OF ARBITRATOR ROBERT M. LEVENTHAL TO WHICH NO EXCEPTION WAS
 FILED WITH THE AUTHORITY.
 
    ACCORDING TO THE RECORD BEFORE THE AUTHORITY, THE PARTIES STIPULATED
 AND SUBMITTED THE FOLLOWING ISSUE TO ARBITRATION:
 
    ARE BOILERS INSPECTED AND MAINTAINED BY BOILER OPERATORS WITH
 SUFFICIENT FREQUENCY TO
 
    INSURE SAFE OPERATION AND THE SAFETY OF SAID PERSONNEL?
 
    THE ARBITRATOR CONCLUDED ON THE BASIS OF THE PARTIES' NEGOTIATED
 AGREEMENT THAT ARMY REGULATION (AR) 420-49, PRESCRIBING POLICY FOR
 BOILER PLANT OPERATIONS, CONTROLLED THE RESOLUTION OF THIS DISPUTE.
 AFTER REVIEWING THE STANDARDS SET FORTH IN AR 420-49, THE ARBITRATOR
 DETERMINED THAT THE ACTIVITY HAD NOT PROPERLY APPLIED THOSE STANDARDS
 WHEN IT REDUCED THE FREQUENCY OF OPERATIONAL VISITS TO INSPECT THE
 BOILERS AT THE ACTIVITY.  ACCORDINGLY, AS HIS AWARD, THE ARBITRATOR
 HELD:
 
    1.  THE EMPLOYER DID NOT FOLLOW APPROPRIATE PROCEDURES WHEN IT
 REVISED ITS BOILER
 
    MAINTENANCE AND INSPECTION FUNCTION.
 
    2.  REVISIONS TO ITS PRESENT MAINTENANCE AND INSPECTION SCHEDULES ARE
 TO BE EFFECTUATED AS
 
    SET FORTH IN THE APPENDED OPINION.
 
    IN THE APPENDED OPINION THE ARBITRATOR STATED THAT THE ACTIVITY COULD
 NOT REDUCE THE FREQUENCY OF OPERATIONAL VISITS TO INSPECT THE BOILERS
 BELOW THAT NUMBER RECOMMENDED IN AR 420-49 UNTIL IT HAD IDENTIFIED EACH
 BOILER WHERE A REDUCTION IN VISITS WAS SOUGHT, SET FORTH THE FREQUENCY
 OF VISITS DEEMED REASONABLE AND THE REASONS THEREFOR, AND RECEIVED
 ADVANCE APPROVAL FROM APPROPRIATE AUTHORITIES.  SUBSEQUENTLY, THE
 ACTIVITY REQUESTED AND RECEIVED THE APPROVAL OF THE COMMANDER, U.S. ARMY
 COMMUNICATIONS COMMAND, FOR A REDUCTION OF THE OPERATIONAL VISITS TO
 SPECIFIED BOILER FACILITIES.
 
    THEREAFTER, THE UNION REQUESTED THAT THE AUTHORITY PETITION A UNITED
 STATES COURT OF APPEALS PURSUANT TO SECTION 7123(B) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7123(B) /1/ FOR
 ENFORCEMENT OF THE ARBITRATION AWARD IN THIS CASE.  THE UNION ASSERTED
 THAT THE ACTIVITY'S REQUEST TO THE COMMANDER OF THE U.S. ARMY
 COMMUNICATIONS COMMAND FOR A REDUCTION IN THE OPERATIONAL VISITS TO THE
 BOILER FACILITIES HAD NOT BEEN IN COMPLIANCE WITH THE PROCEDURES SET
 FORTH IN THE ARBITRATION AWARD AND THAT "(T)HE COMMAND'S REFUSAL TO
 FOLLOW THE ARBITRATOR'S AWARD . . . ALLOWS A HIGHLY DANGEROUS WORKING
 CONDITION TO EXIST." AS PREVIOUSLY INDICATED, NEITHER PARTY TO THE
 ARBITRATION HAD FILED AN EXCEPTION TO THE AWARD WITH THE AUTHORITY.
 
    THE UNION ASSERTS THAT AN ARBITRATION AWARD TO WHICH EXCEPTIONS HAVE
 NOT BEEN FILED UNDER 5 U.S.C. 7122 /2/ BECOMES AN "ORDER" OF THE
 AUTHORITY FOR PURPOSES OF SEEKING ENFORCEMENT UNDER 5 U.S.C. 7123.  IN
 SUPPORT OF ITS ASSERTION, THE UNION CITES A PORTION OF THE LEGISLATIVE
 HISTORY OF THE STATUTE IN WHICH A "FINAL DECISION OF THE AUTHORITY"
 UNDER AN EARLIER VERSION OF SECTION 7122 (I.E., UNDER THE VERSION OF
 SECTION 7122 AS REPORTED OUT OF THE HOUSE POST OFFICE AND CIVIL SERVICE
 COMMITTEE) IS DESCRIBED AS "AN ARBITRATION AWARD WHICH HAS BEEN REVIEWED
 BY THE AUTHORITY OR FOR WHICH THE TIME PERIOD FOR FILING (EXCEPTIONS)
 HAS RUN." /3/ THUS, THE UNION ARGUES THAT THE ARBITRATOR'S AWARD IN THIS
 CASE MUST BE REGARDED AS AN "ORDER" OF THE AUTHORITY WITH WHICH THE
 ACTIVITY ASSERTEDLY HAS FAILED TO COMPLY.
 
    IN RESPONSE THE AGENCY CLAIMS THAT THERE IS NO LEGISLATIVE BASIS FOR
 THE AUTHORITY TO PETITION A UNITED STATES COURT OF APPEALS FOR
 ENFORCEMENT OF THE ARBITRATOR'S AWARD.  IT ASSERTS THAT THE AUTHORITY
 HAS NEVER BEEN ASKED TO REVIEW THIS MATTER AND HAS NEVER ENTERED ANY
 ORDER UNDER THE STATUTE IN THIS CASE.  THE AGENCY ARGUES THAT UNDER
 SECTION 7123(B), ENFORCEMENT MAY BE SOUGHT BY THE AUTHORITY ONLY IN
 THOSE CASES WHERE AN "ORDER" OF THE AUTHORITY HAS BEEN ENTERED, WHICH
 HAS NOT HERE OCCURRED.  THE AGENCY ALSO CLAIMS THAT THE UNION'S REQUEST
 IS INAPPROPRIATE BECAUSE THE ACTIVITY HAS COMPLIED WITH THE AWARD.
 
    FOR THE FOLLOWING REASONS, THE UNION'S REQUEST IS DENIED.  THE
 AUTHORITY FINDS NO STATUTORY BASIS FOR IT TO PETITION A UNITED STATES
 COURT OF APPEALS PURSUANT TO SECTION 7123(B) OF THE STATUTE FOR
 ENFORCEMENT OF AN ARBITRATION AWARD TO WHICH NO EXCEPTION HAS BEEN FILED
 WITH THE AUTHORITY.  IN SUCH A CASE THERE HAS BEEN NO AUTHORITY ISSUANCE
 AND THEREFORE NO "ORDER OF THE AUTHORITY" WHICH THE AUTHORITY MAY SEEK
 TO ENFORCE UNDER 5 U.S.C. 7123(B).  AS TO THE LEGISLATIVE HISTORY CITED
 BY THE UNION, THE AUTHORITY NOTES THAT THE DESCRIPTION OF "FINAL
 DECISION" TO WHICH THE UNION REFERS IS IN A PORTION OF THE HOUSE
 COMMITTEE REPORT RELATING TO THE PROVISIONS OF SECTION 7122 (EXCEPTIONS
 TO ARBITRAL AWARDS) OF THE BILL REPORTED OUT OF THE HOUSE POST OFFICE
 AND CIVIL SERVICE COMMITTEE:
 
    A FINAL DECISION OF THE AUTHORITY UNDER SECTION 7122 (AN ARBITRATION
 AWARD WHICH HAS BEEN
 
    REVIEWED BY THE AUTHORITY OR FOR WHICH THE TIME PERIOD FOR FILING
 (EXCEPTIONS) HAS RUN) IS
 
    SUBJECT TO THE JUDICIAL REVIEW PROVISIONS OF SECTION 7123, AS ADDED
 BY THE
 
    BILL.  /4/ (FOOTNOTE ADDED.)
 
    THE AUTHORITY DOES NOT FIND THIS LEGISLATIVE HISTORY TO BE
 CONTROLLING IN DETERMINING WHETHER THERE IS A STATUTORY BASIS FOR THE
 AUTHORITY TO PETITION A UNITED STATES COURT OF APPEALS IN THE
 CIRCUMSTANCES OF THIS CASE.  IN THIS REGARD THE AUTHORITY NOTES THAT
 WHILE THE UNION CITES A PORTION OF THE HOUSE REPORT DESCRIBING THE
 PROVISIONS OF SECTION 7122 OF THE BILL PERTAINING TO AUTHORITY REVIEW OF
 AN ARBITRATION AWARD, THE PORTION OF THE HOUSE REPORT DESCRIBING SECTION
 7123, IN WHICH THE COURT ENFORCEMENT PROVISIONS OF THE BILL ARE
 CONTAINED, REFERS ONLY TO "THE AWARD BY AN ARBITRATOR (WHICH HAS BEEN
 REVIEWED BY THE AUTHORITY IN ACCORDANCE WITH SECTION 7122, AS ADDED BY
 THE BILL)." /5/ THUS, THE HOUSE REPORT ON THE SPECIFIC SECTION OF THE
 BILL HERE INVOLVED MAKES NO REFERENCE TO ARBITRATION AWARDS FOR WHICH
 THE TIME PERIOD FOR FILING AN EXCEPTION HAS RUN.  INSTEAD, IT LIMITS
 SUCH REFERENCE TO AWARDS WHICH HAVE BEEN REVIEWED BY THE AUTHORITY, THAT
 IS, AWARDS TO WHICH EXCEPTIONS HAVE BEEN FILED AND A DECISION THEREON
 HAS BEEN ISSUED BY THE AUTHORITY.  MOREOVER, NOTHING ELSEWHERE IN THE
 LEGISLATIVE HISTORY SUGGESTS THAT WITHOUT SUCH AN AUTHORITY ISSUANCE,
 THERE CAN BE AN AUTHORITY "ORDER" SUBJECT TO THE ENFORCEMENT PROVISIONS
 OF 5 U.S.C. 7123(B).
 
    THEREFORE, THE AUTHORITY FINDS THAT THE LEGISLATIVE HISTORY OF THE
 STATUTE RELIED UPON BY THE UNION FAILS TO SUPPORT THE UNION'S ASSERTION
 THAT AN ARBITRATION AWARD TO WHICH NO EXCEPTION HAS BEEN FILED BECOMES
 AN "ORDER" OF THE AUTHORITY WITHIN THE MEANING OF 5 U.S.C. 7123(B).  ON
 THE CONTRARY, THE LEGISLATIVE HISTORY OF SECTION 7123 OF THE STATUTE
 SUPPORTS THE CONCLUSION THAT AN "ORDER OF THE AUTHORITY" UNDER SECTION
 7123(B) UPON WHICH ENFORCEMENT ACTION MAY BE PREDICATED BEFORE A UNITED
 STATES COURT OF APPEALS.
 
    THE AUTHORITY FURTHER NOTES THAT IT APPEARS FROM THE RECORD THAT THE
 PARTIES ARE PRIMARILY DISPUTING WHETHER THE ACTIVITY HAS COMPLIED WITH
 THE ARBITRATOR'S AWARD.  THERE ARE READY MEANS AVAILABLE UNDER THE
 STATUTE FOR RESOLVING THIS TYPE OF DISPUTE.  IF A QUESTION OF
 CLARIFICATION OR INTERPRETATION OF THE ARBITRATOR'S AWARD ARISES IN
 CONNECTION WITH COMPLIANCE THEREWITH, THE PARTIES MAY JOINTLY REQUEST A
 CLARIFICATION OR INTERPRETATION OF THE AWARD FROM THE ARBITRATOR OR THE
 PARTIES MAY JOINTLY SUBMIT THE QUESTION OF COMPLIANCE TO ARBITRATION FOR
 RESOLUTION.  IN ADDITION, WHERE APPROPRIATE, THE UNFAIR LABOR PRACTICE
 PROCEDURES UNDER SECTION 7116 OF THE STATUTE MAY BE USED WHEN THERE IS A
 DISPUTE CONCERNING AN ALLEGED FAILURE OF A PARTY TO ABIDE BY A FINAL AND
 BINDING ARBITRATION AWARD.  /6/ INDEED, THE FOREGOING PROCEEDINGS ARE
 PARTICULARLY EQUIPPED TO RESOLVE COMPLIANCE DISPUTES SUCH AS HERE
 INVOLVED SINCE THOSE DISPUTES FREQUENTLY REQUIRE CREDIBILITY AND OTHER
 FACTUAL DETERMINATIONS DEPENDENT UPON THE TAKING OF TESTIMONY IN SUCH
 HEARINGS.
 
    ACCORDINGLY, BECAUSE THERE IS NO "ORDER OF THE AUTHORITY" IN THIS
 CASE TO BE ENFORCED UNDER SECTION 7123(B) OF THE STATUTE, THE UNION'S
 REQUEST THAT THE AUTHORITY PETITION A UNITED STATES COURT OF APPEALS FOR
 ENFORCEMENT OF THE ARBITRATOR'S AWARD IS DENIED.
 
    ISSUED, WASHINGTON, D.C., MARCH 7, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ 5 U.S.C. 7123(B) PROVIDES:
 
    THE AUTHORITY MAY PETITION ANY APPROPRIATE UNITED STATES COURT OF
 APPEALS FOR THE ENFORCEMENT OF ANY ORDER OF THE AUTHORITY AND FOR
 APPROPRIATE TEMPORARY RELIEF OR RESTRAINING ORDER.
 
    /2/ 5 U.S.C. 7122 PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
 ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN AWARD
 RELATING TO A MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF
 UPON REVIEW THE AUTHORITY FINDS THAT THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR REGULATIONS.
 
    (B) IF NO EXCEPTION TO AN ARBITRATOR'S AWARD IS FILED UNDER
 SUBSECTION (A) OF THIS SECTION DURING THE 30-DAY PERIOD BEGINNING ON THE
 DATE OF SUCH AWARD, THE AWARD SHALL BE FINAL AND BINDING.  AN AGENCY
 SHALL TAKE THE ACTIONS REQUIRED BY AN ARBITRATOR'S FINAL AWARD.  THE
 AWARD MAY INCLUDE THE PAYMENT OF BACKPAY (AS PROVIDED IN SECTION 5596 OF
 THIS TITLE).
 
    /3/ H.R. REP. NO. 95-1403, 95TH CONG., 2D SESS. 56 (1978).
 
    /4/ SUPRA NOTE 3.
 
    /5/ H.R. REP. NO. 95-1403, 95TH CONG., 2D SESS. 57 (1978).
 
    /6/ JUDICIAL REVIEW AND ENFORCEMENT OF ORDERS ISSUED BY THE AUTHORITY
 IN SUCH PROCEEDINGS MAY THEN BE SOUGHT UNDER SECTION 7123(A) AND (B) OF
 THE STATUTE.