Department of the Air Force, Air Force Logistics Command (Activity) and American Federation of Government Employees, AFL-CIO (Union) 

 4 FLRA No. 96
 
 DEPARTMENT OF THE AIR FORCE
 AIR FORCE LOGISTICS COMMAND
 (Activity)
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 (Union)
 
                                            Case No. 0-MC-6
 
                           ORDER DENYING MOTION
 
    IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO (AFGE) FILED A MOTION WITH THE AUTHORITY REQUESTING THAT THE
 AUTHORITY SEEK ENFORCEMENT IN A UNITED STATES COURT OF APPEALS, UNDER
 SECTION 7123(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE, OF THE AWARD OF THE FEDERAL SERVICE IMPASSES PANEL (FSIP)
 AUTHORIZED INTEREST ARBITRATION PANEL.
 
    THE RECORD BEFORE THE AUTHORITY REFLECTS THE FOLLOWING PERTINENT
 BACKGROUND FACTS:
 
    IN OCTOBER OF 1978, FOLLOWING MEDIATION-ASSISTED NEGOTIATIONS, AFGE
 AND THE AIR FORCE LOGISTICS COMMAND (AFLC) ENTERED INTO A WRITTEN
 AGREEMENT TO SUBMIT UNRESOLVED NEGOTIATION ISSUES TO A TRIPARTITE PANEL
 FOR FINAL OFFER INTEREST ARBITRATION, WITH ANY AWARD TO BE FINAL AND
 BINDING ON THE PARTIES.  THE PANEL ESTABLISHED BY THE AGREEMENT WAS TO
 BE COMPRISED OF A MEMBER SELECTED BY EACH OF THE PARTIES AND ONE NEUTRAL
 MEMBER WHO WOULD SERVE AS CHAIRMAN.  (ARBITRATOR ROBERT J. ABLES WAS
 EVENTUALLY SELECTED AS NEUTRAL MEMBER/CHAIRMAN.) A REQUEST TO FSIP, AS
 PROVIDED FOR UNDER SECTION 17 OF THE EXECUTIVE ORDER 11491, AS AMENDED,
 AND SECTION 2471.8 OF THE FSIP'S REGULATIONS, FOR AUTHORIZATION TO USE
 THE PROCEDURE TO RESOLVE THE NEGOTIATION IMPASSE, WAS GRANTED BY FSIP
 (CASE NO. 78 FSIP 86, FSIP RELEASE NO. 109).
 
    IN NOVEMBER 1978, THE PARTIES EXCHANGED A FIRST SET OF "FINAL
 OFFERS," AS PROVIDED IN THEIR AGREEMENT, AND MET WITH THE PANEL TO
 DISCUSS PROCEDURES FOR HEARING AND RESOLVING OUTSTANDING ISSUES.  AFTER
 A SECOND EXCHANGE OF "FINAL OFFERS," AFLC DECLARED CERTAIN OF AFGE'S
 PROPOSALS TO BE NONNEGOTIABLE.  IN DECEMBER OF 1978, AFGE REQUESTED, IN
 ACCORDANCE WITH E.O. 11491 PROCEDURES, AN AGENCY HEAD NEGOTIABILITY
 DETERMINATION FROM THE DEPARTMENT OF DEFENSE (DOD) ON THE PROPOSALS AFLC
 HAD DECLARED NONNEGOTIABLE.
 
    IN APRIL OF 1979, NOT HAVING RECEIVED A RESPONSE FROM DOD, AFGE FILED
 A NEGOTIABILITY APPEAL WITH THE AUTHORITY.  SUBSEQUENTLY, IN ITS
 STATEMENT OF POSITION FILED WITH THE AUTHORITY IN THAT CASE, DOD FOUND
 SOME OF THE PROPOSALS TO BE NEGOTIABLE UNDER THE STATUTE, THEREBY IN
 EFFECT RESCINDING AFLC'S DECLARATION THAT THEY WERE NONNEGOTIABLE.
 
    THEREAFTER, A DISPUTE DEVELOPED BETWEEN THE PARTIES AS TO THE
 PROCEDURES FOR CONSIDERATION BY THE TRIPARTITE PANEL OF THE PROPOSALS
 DOD HAD FOUND TO BE NEGOTIABLE.  AFGE ARGUED THAT THERE COULD BE AND
 SHOULD BE AN IMMEDIATE HEARING ON THOSE PROPOSALS, AND ANOTHER LATER
 HEARING ON ANY OF THE REMAINING PROPOSALS THAT THE AUTHORITY FOUND TO BE
 NEGOTIABLE.  AFLC CONTENDED THAT THERE SHOULD BE ONLY ONE HEARING-- TO
 BE CONDUCTED ON ALL NEGOTIABLE PROPOSALS AFTER A DECISION BY THE
 AUTHORITY-- AND THAT THE TRIPARTITE PANEL WAS WITHOUT JURISDICTION TO DO
 OTHERWISE.  BY LETTER OF OCTOBER 24, 1979, THE CHAIRMAN OF THE
 TRIPARTITE PANEL FOUND THE PANEL TO HAVE JURISDICTION TO HEAR AND DECIDE
 THE UNRESOLVED ISSUES FOUND NEGOTIABLE BY DOD, SEPARATE FROM THOSE STILL
 BEFORE THE AUTHORITY.  THE UNION MEMBER OF THE PANEL CONCURRED;  THE
 AGENCY MEMBER DISSENTED.
 
    IN NOVEMBER OF 1979, AFLC INFORMED THE TRIPARTITE PANEL AND FSIP THAT
 IT WAS RESCINDING THE WRITTEN AGREEMENT WHICH ESTABLISHED THE PANEL FOR
 FINAL OFFER INTEREST ARBITRATION, AND WOULD NOT CONSIDER ANY DECISION
 RENDERED BY THE PANEL AS BINDING.  IN LIGHT OF THE AGENCY'S POSITION, A
 HEARING ORIGINALLY SCHEDULED FOR DECEMBER 1979, WAS POSTPONED UNTIL
 FEBRUARY 4, 1980.
 
    ADDITIONALLY IN NOVEMBER OF 1979, AFGE REQUESTED FSIP TO INFORM THE
 TRIPARTITE PANEL MEMBERS THAT THEY HAD JURISDICTION TO ENFORCE THE
 PARTIES' AGREEMENT AND WERE EMPOWERED TO CONDUCT A HEARING IN THE MATTER
 EVEN IF THE AGENCY DID NOT PARTICIPATE.  BY LETTER OF DECEMBER 18, 1979,
 FSIP ADVISED THE PARTIES THAT FSIP HAD AUTHORIZED THE PARTIES TO USE
 OUTSIDE ARBITRATION TO RESOLVE THEIR NEGOTIATION IMPASSES;  THAT FSIP
 HAD CLOSED THE CASE AFTER THAT LIMITED FUNCTION WAS PERFORMED;  AND,
 THAT THERE WAS NOTHING IN THE STATUTE OR THE PANEL'S REGULATIONS WHICH
 GAVE IT THE AUTHORITY TO INTERPRET THE PARTIES' AGREEMENT.  THE FSIP
 THEREFORE DENIED AFGE'S REQUEST.
 
    ON JANUARY 31, 1980, THE AUTHORITY RENDERED ITS DECISION IN AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS
 COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA NO. 77 (1980).
 ON FEBRUARY 4, 1980, THE ARBITRATION PANEL BEGAN HEARINGS ON ISSUES
 DETERMINED TO BE NEGOTIABLE.  THE AGENCY MEMBER OF THE PANEL DID NOT
 PARTICIPATE IN THE PROCEEDINGS, NOR WAS AFLC OTHERWISE REPRESENTED.
 THEREAFTER, AFLC DECLINED TO SUBMIT A POST HEARING BRIEF, ASSERTING THAT
 IT WAS NOT A PARTY TO THE PROCEEDING.  ON MAY 20, 1980, PANEL CHAIRMAN
 ABLES TRANSMITTED A PROPOSED AWARD TO THE UNION AND AGENCY MEMBERS OF
 THE PANEL.  THE UNION MEMBER SIGNED THE AWARD, DISSENTING TO THE AWARD
 AS TO ONE ISSUE AND CONCURRING AS TO ALL OTHERS.  THE AGENCY MEMBER
 DECLINED TO SIGN OR COMMENT.
 
    ON MAY 20, 1980, CHAIRMAN ABLES ISSUED AN AWARD IN THE MATTER
 ADVISING THE PARTIES THAT, "THE DECISION . . . WAS FINAL AND
 ENFORCEABLE." (THE SILENCE OF THE AGENCY MEMBER WAS CONSTRUED AS A
 DISSENT TO THE AWARD.) AFGE THEN FILED THE INSTANT MOTION WITE THE
 AUTHORITY, REQUESTING THAT THE AUTHORITY SEEK JUDICIAL ENFORCEMENT OF
 THE ARBITRATION PANEL'S AWARD IN A UNITED STATES COURT OF APPEALS
 PURSUANT TO SECTION 7123(B) OF THE STATUTE.  AFLC SUBMITTED A BRIEF IN
 OPPOSITION TO THE MOTION, TO WHICH AFGE FILED A RESPONSE.
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE SUBMISSIONS OF THE PARTIES
 AND THE ENTIRE RECORD AND FOR REASONS SET FORTH BELOW, THE UNION'S
 MOTION MUST BE DENIED.
 
    THE AUTHORITY IS EMPOWERED, PURSUANT TO SECTION 7123(B) OF THE
 STATUTE, TO PETITION ANY APPROPRIATE UNITED STATES COURT OF APPEALS FOR
 THE ENFORCEMENT OF ANY OF ITS ORDERS.  THE PARTIES' CONTENTIONS RELATING
 TO WHETHER OR NOT THE AWARD HERE INVOLVED IS AN "ORDER OF THE AUTHORITY"
 WITHIN THE MEANING OF SECTION 7123(B) OF THE STATUTE, FOCUS IN LARGE
 PART ON THE ACTION OF THE FSIP IN AUTHORIZING THE PANEL, SUBSEQUENT
 CONTACT WITH THE FSIP, AND FSIP RESPONSE AS TO ITS JURISDICTION.
 HOWEVER, FSIP INVOLVEMENT IN THE MATTER IS PERIPHERAL TO THE IMMEDIATE
 DISPUTE HERE BEFORE US.
 
    THE PRESENT CASE, IN ESSENCE, IS A DISPUTE CONCERNING AN ALLEGED
 FAILURE BY AFLC TO ABIDE BY AN ASSERTEDLY VALID AWARD OF AN ARBITRATION
 PANEL.
 
    THE AUTHORITY HAS ALREADY DECIDED IN HEADQUARTERS, U.S. ARMY
 COMMUNICATIONS COMMAND, FORT HUACHUCA, ARIZONA AND AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 1662, 2 FLRA NO. 101 (1980), THAT AN
 ARBITRATION AWARD TO WHICH NO EXCEPTION HAS BEEN FILED IS NOT AN "ORDER
 OF THE AUTHORITY" UPON WHICH JUDICIAL ENFORCEMENT MAY BE PREDICATED.
 ALTHOUGH THE AWARD BEFORE THE AUTHORITY IN THE FORT HUACHUCA CASE WAS
 THE RESULT OF A GRIEVANCE ARBITRATION, AND NOT AN INTEREST ARBITRATION
 AS IN THE INSTANT CASE, THE BASIS FOR DENIAL OF A REQUEST TO SEEK
 JUDICIAL ENFORCEMENT IS APPLICABLE HERE.  IN FORT HUACHUCA THE AUTHORITY
 STATED IN RELEVANT PART:
 
    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).
 
    IN ADDITION THE AUTHORITY FOUND THAT:
 
    (W)HERE 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.  /1/
 
    IN THE INSTANT CASE, AS IN THE FORT HUACHUCA CASE, NO EXCEPTIONS WERE
 TAKEN FROM THE ARBITRATION AWARD.  THEREFORE, AN IN FORT HUACHUCA, SINCE
 THE AWARD OF THE PANEL IN THIS CASE WAS NOT BEFORE THE AUTHORITY, IT
 ALSO CANNOT BE CONSIDERED "AN AUTHORITY ISSUANCE." ACCORDINGLY, THE
 ARBITRATION PANEL AWARD IS NOT AN "ORDER OF THE AUTHORITY" WHICH MAY BE
 ENFORCED UNDER SECTION 1123(B) OF THE STATUTE.
 
    FURTHERMORE, EVEN ASSUMING, AS AFGE CONTENDS, THAT THE AWARD OF THE
 ARBITRATION PANEL MAY BE REGARDED AS A DECISION OF THE FSIP, RESOLUTION
 OF COMPLIANCE ISSUES WOULD COMMENCE WITH UNFAIR LABOR PRACTICE
 PROCEDURES.  IN ITS DECISION IN STATE OF NEW YORK, DIVISION OF MILITARY
 AND NAVAL AFFAIRS AND NEW YORK COUNCIL, ASSOCIATION OF CIVILIAN
 TECHNICIANS, INC., 2 FLRA NO. 20 (1979), /2/ THE AUTHORITY DENIED A
 PETITION FOR DIRECT REVIEW OF THE FSIP DECISION AND ORDER, CITING THE
 ABSENCE OF STATUTORY AUTHORIZATION, AND THE CONTINUATION UNDER THE
 STATUTE OF THE POLICY OF THE FEDERAL LABOR RELATIONS COUNCIL WHICH
 PRECLUDES DIRECT APPEALS OF FINAL FSIP DECISIONS EXCEPT IN AN UNFAIR
 LABOR PRACTICE CASE CONTEXT.  /3/
 
    IT IS THEREFORE CONCLUDED THAT THE AWARD OF THE FSIP-APPROVED
 ARBITRATION PROCEEDING IS NOT A JUDICIALLY ENFORCEABLE ORDER OF THE
 AUTHORITY UNDER THE STATUTE;  AND THE DISPUTE BETWEEN THE PARTIES IS
 MORE APPROPRIATELY RESOLVED THROUGH UNFAIR LABOR PRACTICE PROCEEDINGS
 UPON A CHARGE OF A VIOLATION OF SECTION 7116 OF THE STATUTE.  /4/
 ENFORCEMENT OF AN ORDER RESULTING FROM UNFAIR LABOR PRACTICE PROCEEDINGS
 BEFORE THE AUTHORITY COULD THEN BE SOUGHT UNDER SECTION 7123(B) OF THE
 STATUTE.
 
    IN CIRCUMSTANCES SUCH AS THESE, THE UTILIZATION OF UNFAIR LABOR
 PRACTICE PROCEDURES TO SECURE ENFORCEMENT OF ARBITRATION AWARDS IS
 COMPELLED BY THE STATUTE AS SET FORTH ABOVE.  THEREFORE, THE UNION'S
 MOTION MUST BE DENIED.
 
    IT IS HEREBY ORDERED THAT THE MOTION IN CASE NO. 0-MC-6 BE, AND IT
 HEREBY IS, DENIED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 10, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SEE ALSO, NATIONAL TREASURY EMPLOYEES UNION, 3 FLRA NO. 100
 (1980), WHERE THE AUTHORITY IN DENYING A REQUEST FOR A POLICY STATEMENT
 ON THE ENFORCEMENT OF ARBITRATION AWARDS, STATED, IN PART:
 
    INDEED, (UNFAIR LABOR PRACTICE) 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.
 
    /2/ SEE ALSO, STATE OF CALIFORNIA NATIONAL GUARD, SACRAMENTO,
 CALIFORNIA AND LOCALS R12-125, R12-132, R12-146, AND R12-150, NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, 2 FLRA NO. 21 (1979);  AND
 CALIFORNIA NATIONAL GUARD, FRESNO AIR NATIONAL GUARD BASE, FRESNO,
 CALIFORNIA AND LOCAL R12-105, NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, 2 FLRA NO. 22 (1979).
 
    /3/ IN DENYING THE PETITION FOR REVIEW, THE AUTHORITY STATED THAT AN
 FSIP DECISION AND ORDER MAY BE REVIEWED ONLY THROUGH UNFAIR LABOR
 PRACTICE PROCEEDINGS INVOKED BY A PARTY UPON ALLEGED NONCOMPLIANCE WITH
 THE PANEL ORDER IN THAT CASE.
 
    /4/ WE DO NOT HERE DECIDE WHAT SUBSECTION OR SUBSECTIONS OF SECTION
 7116 SHOULD BE INVOKED IN THE UNFAIR LABOR PRACTICE PROCEEDING.