15:0139(26)CA - Soldiers' and Airmen's Home, Washington, DC and AFGE Local 3090 -- 1984 FLRAdec CA
[ v15 p139 ]
15:0139(26)CA
The decision of the Authority follows:
15 FLRA No. 26
U.S. SOLDIERS' AND AIRMEN'S HOME
WASHINGTON, D.C.
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3090, AFL-CIO
Charging Party
Case No. 3-CA-20561
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practice alleged in the complaint, and recommending
that the complaint be dismissed. Thereafter, both the General Counsel
and the Charging Party filed exceptions to the Judge's Decision, and the
Respondent filed separate oppositions thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendation that the complaint be
dismissed.
The complaint alleged that the Respondent's failure and refusal to
comply with an arbitrator's award constituted noncompliance with the
provisions of section 7122(b) of the Statute in violation of section
7116(a)(1) and (8) of the Statute. /1/ As stipulated by the parties,
the Respondent filed timely exceptions to the arbitrator's award with
the Authority. /2/ Those exceptions were still pending for resolution
by the Authority, when the unfair labor practices charges involved
herein were filed. The Judge therefore concluded that the Respondent
had not failed or refused to comply with the provisions of section
7122(b) of the Statute. In this regard, the Judge found that section
7122(b) requires only that an agency shall take the action required by a
"final" award, and provides that an arbitrator's award becomes final and
binding if no timely exceptions to the award are filed with the
Authority pursuant to section 7122(a) of the Statute. Thus, since the
Respondent herein had filed timely exceptions to the arbitrator's award
with the Authority, the Judge concluded that the Respondent was not
required to implement the award pending the Authority's resolution of
those exceptions. The Authority agrees.
Section 7122 of the Statute, as amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 4, 98
Stat. 47, 48 (1984), provides:
Sec. 7122. Exceptions to arbitral awards
(a) Either party to arbitration under this chapter may file
with the Authority an exception to any 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 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 the award is served on the party, 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
back pay (as provided in section 5596 of this title).
The language of section 7122(b) makes it clear that an agency must
take the actions required by an arbitrator's award once that award has
become final, and defines a final and binding arbitrator's award as one
to which no exceptions are filed during the prescribed time following
the service date of such award. Accordingly, where no timely exceptions
to an arbitrator's award have been filed under section 7122(a) of the
Statute, an agency's subsequent failure or refusal to implement the
award has been found to constitute a violation of section 7116(a)(1) and
(8) of the Statute. See U.S. Army Health Clinic, Fort Ritchie,
Maryland, 9 FLRA No. 133 (1982). Similarly, once an agency's timely
filed exceptions to an arbitrator's award have been denied by the
Authority, the agency must implement such award, and therefore a
subsequent failure or refusal to do so also constitutes a violation of
section 7116(a)(1) and (8) of the Statute. See United States Marshals
Service, 13 FLRA No. 60 (1983), appeal docketed, No. 83-7973 (9th Cir.
Dec. 30, 1983). Such conclusion is consistent with the intent of
Congress with respect to the finality of arbitrators' awards, as
expressed by the Committee on Conference in its Report which accompanied
the bill ultimately enacted and signed into law: /3/
The House provides that if no exception to an arbitrator's
award is filed with the Authority, the award "shall be final and
binding" (section 7122(b)). The Senate contained no comparable
provision. The conferees adopted the House provision. The intent
of the House in adopting this provision was to make it clear that
the awards of arbitrators, when they become final, are not subject
to further review by any other authority or administrative body,
including the Comptroller General.
Conversely, where exceptions to an arbitrator's award have been filed
under section 7122(a) of the Statute within the time limits specified in
section 7122(b), such award, by definition, has not become "final and
binding." Since an agency is only required by section 7122(b) to "take
the actions required by an arbitrator's final award", a failure to
comply with the award until the pending exceptions have been resolved by
the Authority cannot constitute noncompliance with that section and
therefore is not a violation of section 7116(a)(1) and (8) of the
Statute. As noted by the Judge, a contrary conclusion could result in
the Authority's reaching the conflicting conclusions that an agency has
committed an unfair labor practice by refusing to comply with an
arbitrator's award and the issuance of an affirmative order requiring
compliance, on the one hand, and, on the other hand, that exceptions to
the same award are meritorious and that the award must be set aside
under section 7122(a).
Inasmuch as the Respondent herein filed timely exceptions to binding"
within the meaning of section 7122(b) of the Statute until the Authority
issued its decision resolving the exceptions, /4/ the Respondent was not
required during the period of time encompassed by the complaint herein
to take the action required in the award and, therefore, did not violate
section 7116(a)(1) and (8) of the Statute as alleged. Accordingly, the
complaint shall be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-20561 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 26, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Major Glen H. Schlabs, Esquire
For the Respondent
Eileen Hamamura Miller, Esquire
For the General Counsel
Donald M. MacIntyre, Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
This case arose as an unfair labor practice proceeding under
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called "the Statute"),
and the Rules and Regulations issued thereunder. It was transferred to
the Office of Administrative Law Judges for decision on a stipulated
record.
The complaint, dated July 29, 1982, alleges that from on or about
March 25, 1982, the Respondent failed and refused to comply with the
provisions of 5 U.S.C. 7122(b) of the Statute by failing and refusing to
comply with an arbitrator's award; and further that by reason of the
foregoing the Respondent committed unfair labor practices in violation
of Sections 7116(a)(1) and (8) of the Statute.
The Respondent denies violating the provisions of Section 7122(b) of
the Statute on the ground that the award in question was not final and
binding within the meaning of Section 7122(b).
Based upon the entire record herein, including the stipulation of
facts, stipulated exhibits, and briefs filed by the parties, I make the
following findings of fact, conclusions and recommendation.
Findings of Fact
On or about September 24, 1981, and November 6, 1981, the Respondent
and the Charging Party participated as parties in an arbitration
proceeding presided over by Arbitrator Nicholas H. Zumas. The
arbitration case, entitled "In the Matter of Arbitration Between U.S.
Soldiers' and Airmen's Home, and American Federation of Government
Employees, Local 3090, FMCS Case No. 81-K-18940, Grievant: Josie
Simpkins," resulted in the issuance of a March 25, 1982 award in favor
of the Grievant. The Grievant, a nursing assistant, had been charged
with misconduct associated generally with alleged acts of patient abuse.
The award resolved certain credibility issues in favor of the Grievant.
It provided that she be reinstated within ten days of the award with
seniority unimpaired, and with back pay less deduction for outside
earnings.
On April 22, 1982, the Respondent filed timely exceptions to the
award in accordance with Section 7122(b) of the Statute, but did not,
and has not, requested a stay of the award. The Respondent has not
complied with the award, and as of this date the Authority has not ruled
on exceptions filed.
Discussion and Conclusions
Section 7116(a)(8) of the Statute makes it an unfair labor practice
for an agency "to otherwise fail or refuse to comply with any provision
of this chapter." Counsel for the General Counsel contends that the
Respondent's failure to comply with the March 25, 1982 arbitration award
was violative of Section 7122(b) of the Statute, and that as a result
Respondent violated Sections 7116(a)(1) and (8).
Section 7122 provides the following with respect to arbitral awards:
Sec. 7122. Exceptions to arbitral awards.
(a) Either party to arbitration under this chapter may file
with the Authority an exception to any 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. /5/
(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).
Section 2429.8 of the Regulations (5 C.F.R. 2429.8) provides:
Sec. 2429.8 Stay of Arbitration Award; requests.
(a) A request for a stay shall be entertained only in
conjunction with and as a part of an exception to an arbitrator's
award filed under Part 2425 of this subchapter. The filing of an
exception shall not itself operate as a stay of the award involved
in the proceedings.
(b) A timely request for a stay of an arbitrator's award to
which an exception has been filed shall operate as a temporary
stay of the award. Such temporary stay shall be deemed effective
from the date of the award and shall remain in effect until the
Authority issues decision and order on the exception, or the
Authority or its designee otherwise acts with respect to the
request for the stay.
(c) A request for a stay of an arbitrator's award will be
granted only where it appears, based upon the facts and
circumstances presented, that:
(1) There is a strong likelihood of success on the merits of
the appeal; and
(2) A careful balancing of all the equities, including the
public interest, warrants issuance of a stay.
On November 20, 1981, the Authority proposed a revision of Section
2429.8 to provide that the timely filing of an exception to an
arbitration award would automatically stay such award until the
Authority resolved the exception. 46 Fed.Reg. 57056 (1981). The
revised Section 2429.8 would have contained the following language:
Sec. 2429.8 Stay of Arbitration Award.
The filing of an exception to an arbitrator's award under Part
2425 of this subchapter shall operate as a stay of the award.
Such stay shall be deemed effective from the date of the award and
shall remain in effect until the Authority resolves the exception.
The explanation accompanying the proposed revision noted:
Under Sec. 2429.8 of the Authority's final rules and
regulations, the Authority will entertain a request for a stay of
an arbitration award only in conjunction with and as part of an
exception to an arbitrator's award filed under part 2425 of the
rules and regulations. The proposed revision would more
accurately reflect the provisions and intent of section 7122(b) of
the Federal Service Labor-Management Relations Statute (5 U.S.C.
7122(b)) . That section provides that if an exception to an award
is not filed with the Authority during the 30 day period beginning
on the date of the award, then the award becomes final and binding
and whatever action is required by the final award must be taken.
Therefore, the Statute implicitly provides for a stay of the award
when exceptions have been timely filed with the Authority and the
proposed revision reflects that provision. Likewise, the change
facilitates the administration of the Statute, since it would
avoid questions concerning compliance with an award which may be
subsequently set aside or modified as a result of the exceptions
filed.
On August 25, 1982, the Authority withdrew the proposed revision, and
provided the following explanation:
The Authority has carefully considered all of the comments
received on the proposed revision from agencies, labor
organizations, and law firms. Based on those comments and further
consideration of the matter, the Authority has determined that the
provisions of the Federal Service Labor-Management Relations
Statute, including those specifically related to arbitration, are
best served by retaining Sec. 2429.8 of the Authority's rules and
regulations as currently in effect. The proposed revision
therefore is withdrawn. 47 Fed.Reg. 38133 (1982).
It is noted that the Authority did not, in its withdrawal of the
proposed revision, repudiate the interpretation of Section 7122(b)
reflected in the November 20, 1981 comment accompanying the proposed
revision.
This case necessarily turns upon the threshold question of whether or
not the conduct of the Respondent was violative of Section 7122(b) of
the Statute. Only on this basis may the provisions of Section
7116(a)(1) and (8) be invoked. /6/ Section 7122(b) does not
specifically or otherwise accord a final and binding effect to
arbitrator's awards during the period when the Authority is resolving
exceptions timely filed under the provisions of Section 7122(b), and the
terminology utilized in Section 7122(b) does not address the issue of
whether there is a duty to comply with an arbitrator's award while a
case is pending before the Authority after the timely filing of
exceptions. Further, the terms of Section 7122(b) do not specifically
address the question of deference to be accorded to arbitration awards
during the period when timely filed exceptions are being resolved.
In order for a violation of Section 7116(a)(8) to exist it must be
shown that the Respondent failed or refused to comply with a provision
of the Statute. As noted the Statute does not specifically impose an
obligation of the type alleged in the complaint. This interpretation
was recognized by the Authority in its November 20, 1981 issuance
relating to the proposed revision of Section 2429.8 of the Regulations.
It is true that Section 2429.8 does appear to accord a binding effect
to such awards pending resolution of exceptions in cases wherein a stay
has not been granted; however, it is clear from the terms of Section
2429.8, that a failure to obtain a stay pending resolution of exceptions
does not automatically confer finality to an arbitration award.
This case is unlike U.S. Army Health Clinic, Ft. Ritchie, Maryland, 9
FLRA No. 133 (August 16, 1982). In the cited case the award had a final
and binding effect within the meaning of Section 7122(b) because timely
exceptions were not filed by the U.S. Army Health Clinic. Thus,
violations of Section 7116(a)(1) and (8) were appropriately based upon a
failure to comply with Section 7122(b).
Similarly, this case is unlike a refusal to give effect to a decision
of the Federal Service Impasses Panel. Such conduct is made an unfair
labor practice by Section 7116(a)(6). In such cases the duty to comply
is mandated by the Statute. Thus, even assuming that Section 2429.8 of
the Regulations accords a final and binding effect to an arbitration
award in cases wherein timely exceptions are filed and a stay is not
obtained, the contravention of the terms of Section 2429.8, a regulatory
provision, may not, without a corresponding failure to comply with the
Statute, rise to the level of an unfair labor practice. /7/
The underlying theory of the complaint in this case necessarily
suggests that an agency may be found guilty of an unfair labor practice
for refusal to obey an arbitrator's award pending resolution of
exceptions, even though the resolution of such exceptions might, under
the provisions of Section 7122(a), result in the setting aside or
modification of the award by the Authority. It is conceivable that
under such a theory an agency charged with a failure to comply with an
arbitrator's award might be found guilty of an unfair labor practice for
failure to comply, and also be absolved from any responsibility to
comply with the award because of a favorable determination in the
separate appeal of the arbitration award. Since the issue of compliance
would be pending before the Authority, and the Office of Administrative
Law Judges, inconsistent dispositions might easily result.
Problems posed in this area of concern were recognized by the
Authority in the November 20, 1981 statement relating to the proposed
revision of Section 2429.8 of the Regulations. Also, the Authority must
have been considering the possibility of such incongruous results during
the formulation of its decision in Headquarters, U.S. Army
Communications Command, et al., Fort Huachuca, Arizona, 2 FLRA 785
(1980). In Fort Huachuca the Authority noted the following with respect
to cases involving issues concerning compliance with arbitration awards:
There are ready means under the Statute for resolving this type
of dispute . . . . (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. /8/
This policy position has been reaffirmed by the Authority. General
Statement of Policy or Guidance, 3 FLRA 623 (1980); Department of the
Air Force, Air Force Logistics Command, 4 FLRA No. 96 (1980); Council
of District Office Locals, American Federation of Government Employees,
San Francisco Region, AFL-CIO, 5 FLRA No. 100 (January 15, 1982, Order
Denying Petition for Enforcement). See also United States Marshals
Service, Case No. 3-CA-2800, OALJ 82-78 (Decision of Administrative Law
Judge Salvatore J. Arrigo, June 23, 1982).
These authorities reflect that only a failure or refusal to comply
with a final and binding arbitration award may be made the basis of an
unfair labor practice charge and complaint.
Upon the basis of the foregoing, it is recommended that the Authority
issue the following Order pursuant to 5 C.F.R. 2423.29(c).
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-20561, be,
and it hereby is, dismissed.
LOUIS SCALZO
Administrative Law Judge
Dated: November 24, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ However, the Respondent did not request a stay of the award under
section 2429.8 of the Authority's Rules and Regulations.
/3/ H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 158 (1978), reprinted
in Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 826
(1979).
/4/ The exceptions filed by the Agency were denied by the Authority
on March 18, 1983 in U.S. Soldiers' and Airmen's Home, 11 FLRA No. 117
(1983).
/5/ After final decision or order of the Authority has been issued, a
party to the proceeding before the Authority who can establish
extraordinary circumstances, may move for reconsideration of such final
decision or order (5 C.F.R. 2429.17).
/6/ The complaint alleges a violation of Section 7116(a)(1) only as a
derivative of the alleged violation of Section 7116(a)(8).
/7/ The complaint herein does not allege that the Respondent violated
Section 2429.8 of the Regulations as such an infraction would not,
without an accompanying violation of the Statute, constitute an unfair
labor practice within the meaning of Section 7116(a)(8).
/8/ In a footnote to the cited portion of the Fort Huachuca case the
Authority pointed out that 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.