15:0151(27)CA - Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH and Council 214, AFGE; Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE -- 1984 FLRAdec CA
[ v15 p151 ]
15:0151(27)CA
The decision of the Authority follows:
15 FLRA No. 27
UNITED STATES AIR FORCE
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
COUNCIL 214, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case No. 5-CA-455
UNITED STATES AIR FORCE
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 5-CA-842
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled consolidated proceeding, finding that the Respondent had
engaged in certain unfair labor practices alleged in the complaints, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision.
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 recommended Order, as modified below.
The complaint in Case No. 5-CA-842 alleged a violation of section
7116(a)(1), (5), (6) and (8) of the Statute based upon the Respondent's
refusal to implement an arbitration award rendered in an ex parte
interest arbitration proceeding which had been approved by the Federal
Service Impasses Panel as an appropriate procedure for resolving the
parties' negotiation impasse. The Judge found that the Respondent's
noncompliance with the validly obtained arbitrator's award-- which he
concluded had become final and binding in the absence of duly filed
exceptions and was not subject to review in an unfair labor practice
proceeding-- constituted a per se violation of section 7116(a)(1), (5),
(6) and (8). The Judge also concluded, with regard to the complaint in
Case No. 5-CA-455, that the Respondent's refusal to grant official time
and travel and per diem to three employee representatives for their
attendance at the arbitration proceeding, pursuant to section 7131(a) of
the Statute, constituted a violation of section 7116(a)(1) and (8) of
the Statute.
The Authority finds, in agreement with the Judge, /1/ that the
Respondent's refusal to implement the arbitration award constituted a
violation of section 7116(a)(1), (6) and (8) of the Statute. As the
Judge noted, section 7122(a) of the Statute provides that either party
to an arbitration may file exceptions to an arbitrator's award with the
Authority. /2/ That Congress intended this procedure to apply to awards
rendered in interest arbitration proceedings, such as involved in the
instant case, was made clear by the following explanatory comments of
the House Committee on Post Office and Civil Service contained in its
Report accompanying H.R. 11280: /3/
Section 7122 sets forth the procedures under which a party may
obtain review by the Authority of an arbitrator's award. The
procedures apply in the case of either an award in an arbitration
resulting from an impasse proceeding under section 7119(b) . . .
or an award in a grievance proceeding under section 7121 . . . .
Congress further provided in section 7122(b) of the Statute that
where no exceptions to an award have been filed within a prescribed time
the award becomes final and binding and agencies are required to take
such actions as are necessary to implement the award. /4/
Consistent with the foregoing, the Authority finds that where a party
seeks to challenge the propriety of an arbitration award, the
appropriate mechanism for doing so, as Congress clearly intended, is
through the filing of exceptions to that award under the provisions of
section 7122(a) of the Statute. Where a party fails to avail itself of
this procedure within the allotted time period, the award becomes final
and binding and an agency is required to take such actions as are
required by the award. In such circumstances, a failure to take the
actions required by the award constitutes noncompliance with section
7122(b) and is therefore a violation of the Statute. To allow a party
which has not filed exceptions to an award to defend its failure to
implement that award in a subsequent unfair labor practice proceeding on
grounds that should have been raised as exceptions to the award under
section 7122, such as in this case, would circumvent the procedures
provided in section 7122 (a) and frustrate Congressional intent with
respect to the finality of arbitration awards. In this regard, as
stated by the Committee on Conference in its Report which accompanied
the bill ultimately enacted and signed into law: /5/
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.
In the instant case, the Authority finds that the Respondent was
required to implement the award, which the Judge found was validly
obtained, and to which no exceptions had been filed within the period
prescribed in section 7122(b), and which therefore became "final and
binding" within the meaning of that provision of the Statute. The
Respondent's failure to do so thus constitutes a violation of section
7116(a)(1) and (8) of the Statute. See U.S. Army Health Clinic, Fort
Ritchie, Maryland, 9 FLRA 935 (1982). /6/ See also U.S. Soldiers' and
Airmen's Home, Washington, D.C., 15 FLRA No. 26 (1984) with regard to
when an arbitrator's award becomes "final and binding." The Authority
further finds that, inasmuch as the interest arbitration award in this
case resulted from the Federal Service Impasses Panel's granting the
parties' request to resolve their negotiation dispute through the use of
interest arbitration, the Respondent's refusal to comply with the award
constitutes a failure to cooperate with impasse procedures and decisions
in violation of section 7116(a)(6) of the Statute. /7/
To remedy the foregoing unfair labor practices, the Judge ordered the
Respondent, inter alia, to implement the terms of the interest
arbitration award retroactive to its effective date and to make the
Union and employees whole for any monetary losses suffered as a result
of Respondent's refusal to implement the award. The Respondent contends
that the Authority has no power to order such a remedy because it "would
be compelling agreement to terms which management has not agreed which
were established by a method that was not agreed to." In the Authority's
view, it will effectuate the purposes and policies of the Statute to
require the Respondent to incorporate the terms of the award in the
parties' agreement retroactive to the date that the award became final
and binding, subject to any agreement which may have been reached by the
parties concerning any matter contained in the award following its
issuance, and until modified in a manner consistent with the Statute.
In this connection, the Authority concludes that its wide discretion to
fashion appropriate remedies for violations of the Statute /8/
encompasses such a remedial order. This conclusion is further
buttressed by the fact that the Authority is empowered by section
7118(a)(7)(B) of the Statute to issue an order requiring that an
agreement "be given retroactive effect" in similar circumstances, and by
section 7118(a)(7)(D) to require "such other action as will carry out
the purpose of this chapter." Accordingly, the Judge's recommended Order
is adopted to this extent and shall be modified accordingly.
With respect to the complaint in Case No. 5-CA-455, the Judge found
that the refusal to grant official time and travel and per diem to the
three employees who were stipulated by the parties as having served at
the interest arbitration hearing as the Union's witnesses and designated
negotiators constituted a violation of section 7116(a)(1) and (8) of the
Statute, and that the employees should be made whole with respect
thereto. The Authority adopts the Judge's conclusion with respect to
the failure to grant officials time to the designated negotiators.
Thus, inasmuch as the interest arbitration proceeding was authorized by
the Federal Service Impasses Panel to resolve the parties' negotiation
impasse, the three employees serving as the Union's representatives were
entitled to official time pursuant to section 7131(a) of the Statute.
/9/ While section 7131(a) contains a limitation on the number of union
representatives to be authorized official time thereunder, the Authority
concludes that it would be inconsistent with the purposes and policies
of the Statute if the Respondent's refusal to be represented at the
foregoing proceeding could be used as a basis to deny a reasonable
number of Union representatives official time to which they would
otherwise have been entitled.
However, with regard to the Judge's further finding of a violation
based on the Respondent's refusal to grant the employees' requests for
travel and per diem expenses, the United States Supreme Court concluded
in Bureau of Alcohol Tobacco and Firearms v. FLRA, 104 S.Ct. 439 (1983),
issued subsequent to the Judge's Decision herein, that the obligation of
an agency under section 7131(a) of the Statute to provide official time
to employees representing an exclusive representative in the negotiation
of a collective bargaining agreement does not encompass the payment of
travel expenses and per diem allowances. Pursuant to that decision and
for the reasons set forth by the Court, the Authority concludes that the
Respondent did not fail or refuse to comply with the provisions of
section 7131(a) of the Statute by denying travel and per diem expenses.
Accordingly, that portion of the complaint shall be dismissed.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Failing and refusing to cooperate in impasse procedures and
decisions, and to implement a final offer arbitration award rendered on
May 20, 1980, by a panel authorized by the Federal Service Impasses
Panel.
(b) Failing and refusing to authorize and provide official time to
employees Jack Stickradt, Jerre Harvard and Donald Cook, as a result of
their participation under section 7131(a) of the Statute as the
designated representatives of Council 214, American Federation of
Government Employees, AFL-CIO, their exclusive representative, at a
final offer arbitration proceeding.
(c) In any like or related manner interfering with, restraining or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Incorporate the terms of the arbitration award which became final
and binding on June 19, 1980, into the collective bargaining agreement
between the Air Force Logistics Command and the American Federation of
Government Employees, AFL-CIO, subject to any agreement which may have
been reached by the parties concerning any matter contained in the award
following its issuance, and until modified in a manner consistent with
the Statute.
(b) Provide Union representatives Jack Stickradt, Jerre Harvard and
Donald Cook official time for the performance of their representational
duties on February 4 and 5, 1980, and make them whole for any annual
leave they may have utilized on those dates.
(c) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Commander, Air Force Logistics
Command, or his designee, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the portion of the complaint in Case No.
5-CA-455 found not to have violated the Statute 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
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to cooperate in impasse procedure and
decisions, and to implement a final offer arbitration award rendered on
May 20, 1980, by a panel authorized by the Federal Service Impasse
Panel.
WE WILL NOT fail or refuse to authorize and provide official time to
employees Jack Stickradt, Jerre Harvard and Donald Cook, as a result of
their participation under section 7131(a) of the Statute as the
designated representatives of Council 214, American Federation of
Government Employees, AFL-CIO, their exclusive representative, at a
final offer arbitration proceeding.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL incorporate the terms of the award which became final and
binding on June 19, 1980, into our collective bargaining agreement with
the American Federation of Government Employees, AFL-CIO, subject to any
agreement which may have been reached concerning any matter contained in
the award following its issuance, and until modified in a manner
consistent with the Statute.
WE WILL provide Union representatives Jack Stickradt, Jerre Harvard
and Donald Cook official time for the performance of their
representational duties on February 4 and 5, 1980, and make them whole
for any annual leave they may have utilized on those dates.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 for the Federal Labor Relations Authority whose address is:
175 West Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and
whose telephone number is (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
David W. Kerber, Esquire
For the Respondent
Janet Wachter
For the Charging Party
Gregory A. Miksa, Esquire
For the General Counsel
Before: ALAN W. HEIFETZ
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
of unfair labor practice charges filed on March 21, 1980, and December
1, 1980, with the Federal Labor Relations Authority. Consequently, on
December 11, 1980, the Acting Regional Director, Region V, of the
Authority issued a complaint alleging that Respondent violated Sections
7116(a)(1) and (8) of the Statute by failing or refusing to grant
official time, travel and per diem for employees designated by the Union
as negotiators and/or witnesses as a final offer arbitration hearing
held on February 4 and 5, 1980. Then, on January 26, 1981, the Regional
Director, Region V, of the Authority issued a complaint alleging that
since on or about June 19, 1980, Respondent has violated Sections
7116(a)(1), (5), (6), and (8) of the Statute by failing to negotiate in
good faith with the Union, failing to cooperate in impasses procedures
and decisions, and failing to implement a final offer arbitration
decision rendered on May 20, 1980, by a panel approved by the Federal
Service Impasses Panel. At the same time, these cases were consolidated
for hearing.
A hearing was held on March 19, 1981, in Dayton, Ohio. All parties
were afforded full opportunity to examine witnesses and to introduce
evidence. Post hearing briefs have been filed and considered. /10/
Upon the entire record, including my observation of the witnesses and
their demeanor, I make the following findings, conclusions and
recommendations:
Findings of Fact
On January 13, 1978, the American Federation of Government Employees,
AFL-CIO (AFGE or the Union), was certified as the exclusive
representative of a consolidated unit of employees at the Air Force
Logistics Command (AFLC or Respondent). Negotiations began on the
collective bargaining agreement in June of that year and continued
throughout the summer. The Federal Mediation and Conciliation Service
(FMCS) was subsequently called to attempt to resolve certain outstanding
matters between the parties.
During the first week of October, 1978, the parties met in
Washington, D.C. with representatives of the FMCS who suggested that,
rather than submitting impassed matters to the Federal Service Impasses
Panel (FSIP), they resolve their contract differences by the novel use
of binding interest arbitration. The parties agreed to this approach
and they entered into a written agreement providing for a tripartite
panel (the Panel) to arbitrate disputed remaining issues in their
collective bargaining negotiations. FMCS transmitted this agreement to
FSIP for its authorization of the tripartite panel as a proper
alternative to direct FSIP consideration of impassed issues. On October
12, 1978, FSIP authorized this use of outside arbitration as requested.
The agreement, which was signed by the parties, witnessed by
Commissioners of the FMCS and approved by FSIP, provides, inter alia:
5. The arbitration panel shall decide only issues which are
negotiable. In the event of a dispute over negotiability, the
arbitration panel shall not presently decide such issue, but shall
retain jurisdiction pending determination of the negotiability of
that issue.
6. The arbitration panel shall have sole discretion to decide
questions of procedure.
8. The decision of the arbitration panel shall be the final
offer of one of the parties on each article, with no
modifications.
9. The decision of the arbitration panel shall be final and
binding on the parties, and further rights of appeal are hereby
waived by the parties except that all articles must be in
conformance with law and Executive Order.
Thereafter, the parties selected Robert J. Ables as chairman of the
tripartite arbitration panel, along with two other members. On November
2, 1978, the parties met with Mr. Ables. During that meeting, a
question was raised whether the term "issue", as used in the agreement,
equated with the term "article" or whether an "article" might contain
several "issues". This distinction became crucial in light of the
parties' next meeting with Mr. Ables on November 13, 1978, a meeting
which became the focus of this proceeding. The question raised at that
meeting was whether, as to matters reserved as nonnegotiable but later
found to be negotiable, there would be one or possibly two further
hearings which would follow the initial hearing on matters which were
immediately agreed to be negotiable.
Respondent's position at that November 13, 1978 meeting was that, in
view of paragraph 8 of the agreement which required a decision, up or
down on an entire article, it did not want to have piecemeal hearings on
any one article since it envisioned the possibility of choosing the
Union's proposal on one "issue" in an article and Respondent's position
on another "issue" within the same article. Respondent feared that such
a split on "issues" might result in two or more parts of an "article"
which did not necessarily mesh. Moreover, the AFLC knew that even if it
reserved an issue as nonnegotiable, its determination might be overruled
by the Department of Defense (DOD) which had the right to review that
determination. In addition, the Union had the right to appeal AFLC's or
DOD's nonnegotiability determination to the Federal Labor Relations
Council (the Authority's precursor). This raised the possibility that
after the Panel's initial hearing, DOD might find an "issue" negotiable
prior to the time that the Federal Labor Relations Council (or later,
the Authority) might rule on other "issues" contained in the same
"article". Again, AFLC did not want two hearings but sought, instead,
to have one hearing only after all "issues" had had their negotiability
finally determined. Respondent believes that it offered, and that the
Union accepted, a compromise which would allow the Panel to consider
part of an article, the part that was negotiable, at one hearing and
then, once after all the negotiability disputes were settled, there
would be one other hearing to rule on the items which had been declared
negotiable by DOD and the Federal Labor Relations Council.
On the other hand, the Union takes the position that no agreement was
reached at this November 13, 1978, meeting of the parties and Mr. Ables.
As will be covered in more detail below, Mr. Ables would later find
that no "meeting of the minds" took place at this meeting on the
question.
Two pieces of correspondence have some bearing on this November 13,
1978, meeting. On November 21, 1978, Respondent wrote to Mr. Ables "to
confirm our understanding of the procedures to be followed in our
interest arbitration as agreed upon at the conclusion of that meeting."
Paragraph 3 of the letter stated:
. . . Those issues which management declares nonnegotiable will
not be considered by the tripartite panel during the hearings
scheduled for 4-8 December 1978. The remaining negotiable
sections of those Union proposals and corresponding management
sections will be heard by the tripartite panel, and such residual
proposals shall be subject to a decision on an all or nothing
basis on each article . . .
Paragraph 5 contained the following:
Finally, the panel will retain jurisdiction over those issues
declared nonnegotiable by management which are subsequently found
to be negotiable by either the Department of Defense or the
Federal Labor Relations Council. A hearing on those issues found
to be negotiable will take place only after all outstanding
negotiability issues have been finally decided by either the
Defense Department or the Council (or its successor under Title
VII of the Civil Service Reform Act).
The Union representative wrote to Mr. Ables on November 29, 1978,
commenting on Respondent's letter of the 21st:
" . . . I do not disagree with most of the procedures outlined
in that letter. However, I am in disagreement with some of the
provisions stated in paragraph 4 of that letter.
Paragraph 4 of Respondent's letter did not concern the issue of
whether there should be more than one subsequent hearing after the
hearing scheduled to be held in December of 1978.
In the meantime, the parties exchanged final offers on November 17,
1978, and the AFLC declared certain union proposals nonnegotiable by
letter dated November 29, 1978.
Beginning on December 4, 1978, the parties appeared before the Panel
and presented testimony and arguments concerning issues agreed by both
parties to be negotiable as well as, and without objection by the AFLC,
negotiable portions of articles otherwise reserved as nonnegotiable. At
the close of the hearings, the parties adopted Mr. Ables' suggestion
that a scaled down negotiating team convene in his office rather than
the Panel deciding on either the Union's or the Employer's proposals.
As a result, all of the negotiable issues were settled by the parties
and no decision was rendered by the Panel.
On December 29, 1978, the Union requested an agency head
negotiability determination from the Department of Defense regarding the
proposals declared nonnegotiable by its subordinate command, the AFLC.
Not having received a response from DOD within the time limits under
rules of the Authority's predecessor, on April 5, 1979, the Union sought
Authority review of the declarations of nonnegotiability.
On May 2, 1979, the parties' basic collective bargaining agreement,
which contained matters settled after the close of the Panel hearing in
December, became effective. On May 17, 1979, DOD filed its position
paper with the Authority in which it upheld some, and overruled other
AFLC declarations of nonnegotiability.
Shortly after DOD reversed some of AFLC's declarations, the Union
requested Mr. Ables to reconvene the Panel to hear those issues declared
negotiable by DOD. On July 18. 1979, Mr. Ables wrote to Respondent
requesting a meeting of the parties on August 22 in order to discuss the
matter. Respondent wrote back on July 31 agreeing to the meeting but
opposing the Union's request for further hearings until all issues of
negotiability had been settled. All parties attended the meeting on
August 22 and thereafter furnished Mr. Ables with written statements of
their positions as to further hearings.
On October 24, 1979, Mr. Ables, with the concurrence of the Union
Panel member on November 2, 1979, rendered his determination of the
parties' dispute, granting the Union's request for a reopening of the
Panel's hearings on the issues declared negotiable by DOD and scheduling
those hearings to begin on December 3, 1979.
After receiving Mr. Ables' decision, Respondent took the position
that a material breach of the interest arbitration agreement had
occurred and that the breach had been supported by Mr. Ables. As a
result, on November 14, 1979, Respondent notified the Union, Mr. Ables,
and FSIP that it was rescinding the interest arbitration agreement and
would leave resolution of the remaining impasses to the FSIP.
On November 23, 1979, the Union wrote to FSIP asking it to reaffirm
the Panel's authority to proceed. Respondent forwarded its position on
December 7, 1979. FSIP communicated to the parties on December 18
stating that the case was closed and that therefore it was denying the
request to rule on the jurisdiction of the Panel and was not, itself,
reasserting jurisdiction over the matter.
In the meantime, Mr. Ables had written to the Authority requesting
that it make an expedited decision on the negotiability appeals pending
before it and which involved the parties. He requested the Authority to
rule by February 4, 1980, on all, or as many of the issues as possible
by that date because the Panel intended to begin hearings at that time.
The parties were sent copies of this correspondence. Mr. Ables referred
to this letter in his next communication to the parties on January 16,
1980, wherein he reiterated that hearings would commence on February 4
and that he was informed by the Authority that the parties could expect
a decision on the negotiability appeals before that date.
By letter dated January 28, 1980, Respondent notified Mr. Ables that
it did not consider the Panel to have any further authority, that it
would not participate in the hearing scheduled for February 4, and that
it would not consider binding any decision which might result from the
hearing.
On January 31, 1980, the Authority issued its negotiability decision
on all open issues in Case No. O-NG-40, Air Force Logistics Command and
American Federation of Government Employees, 2 FLRA No. 77.
On February 4 and 5, 1980, the Panel held hearings at which testimony
was adduced and evidence received. No representatives of Respondent
were present. However, Jack Stickradt, Jerre Harvard and Donald Cook,
all employees of Respondent, were in attendance at these hearings
serving as witnesses and designated negotiators on behalf of the Union
during the time they otherwise would have been in duty status on the
days the hearings were conducted. These employees, and the Union on
their behalf, requested of and were denied by Respondent official time,
travel and per diem for their attendance at those hearings. /11/
On March 6, 1980, Mr. Ables sent AFLC a copy of the transcript of the
proceedings conducted on February 4 and 5, and recommended that it file
a post hearing brief. The AFLC elected to return the transcript
disclaiming that it was a party. It filed no brief.
The Panel issued its decision on May 20, 1980. No exceptions to that
decision were filed. However, on June 16, 1980, the Union moved the
Authority to enforce the Panel's award. This motion was opposed by AFLC
on July 24, 1980. On December 1, 1980, the Union filed an unfair labor
practice charge in Case No. 5CA-842. On December 10, 1980, the
Authority issued its decision at 4 FLRA No. 96 denying the Union's
motion and ruling that the only appropriate forum for adjudicating an
allegation of refusal to implement the Panel's award is through the
unfair labor practice procedure. The Panel's award has not been
implemented by Respondent.
Discussion and Conclusions
Timeliness of the charge in 5-CA-842
As the date the alleged unfair labor practice began, the General
Counsel selected June 19, 1980, which is 30 days after the Panel issued
its decision in the interest arbitration. This is within six months of
the charge which was filed by the Union on December 1, 1980. However,
Respondent urges three grounds upon which it believes that the charge
was not timely filed in accordance with Section 7118(a)(4)(A) of the
Statute. /12/
Relying on Machinists Local Lodge 1424 v. NLRB /13/, Respondent
argues that any finding of an unfair labor practice on June 19, 1980,
must be predicated on a determination of the lawfulness of its
"rescission" of the interest arbitration agreement in November of 1979,
and that, therefore, the charge should have been filed within 6 months
of November, 1979. I do not believe Machinists compels that conclusion
nor do I believe that the period of limitations began to run in November
1979.
In Machinists, the NLRB alleged that the execution of a collective
bargaining agreement containing a union security clause was an unfair
labor practice because the Union did not then represent a majority of
the employees covered by the agreement. It also alleged that the
continued enforcement of the agreement was a separate unfair labor
practice. The charges were filed 10 and 12 months after the execution
of the contract. The employer argued that the complaints were barred by
the limitations proviso of Section 10(b) of the National Labor Relations
Act, as amended, /14/ which is similar to Section 7118(a)(4)(A).
Although it was conceded that any unfair labor practice concerning the
execution of the collective bargaining agreement was time barred, the
Board contended that the parties' continued enforcement of the union
security clause within the limitations period was itself a violation and
that evidence as to the unlawful execution of the agreement was relevant
to the assessment of conduct within the 6 month period of limitation.
The Supreme Court agreed with the employer that since the illegality of
continued enforcement of the contract derived from the illegality of its
execution, which occurred outside the 6 month period of limitation, a
charge based on continued enforcement must be filed within the same
period, that is, 6 months from the date of execution. The Court stated:
. . . in applying rules of evidence as to the admissibility of
past events, due regard for the purposes of Sec. 10(b) requires
that two different kinds of situations be distinguished. The
first is one where occurrences within the six-month limitations
period in and of themselves may constitute, as a substantive
matter, unfair labor practices. There, earlier events may be
utilized to shed light on the true character of matters occurring
within the limitations period; and for that purpose Sec. 10(b)
ordinarily does not bar such evidentiary use of anterior events.
The second situation is where conduct occurring within the
limitations period can be charged to be an unfair labor practice
only through reliance on an earlier unfair labor practice. There
the use of the earlier unfair labor practice is not merely
"evidentiary", since it does not simply lay bare a putative
current unfair labor practice. Rather, it serves to cloak with
illegality that which was otherwise lawful. And where a complaint
based upon that earlier event is time-barred, to permit the event
itself to be so used in effect results in reviving a legally
defunct unfair labor practice. 45 LRRM at 3214-3215.
Respondent argues that the instant case falls within the second
situation cited by the Court and that the General Counsel "must rely on
the alleged unfair labor practice in November of 1979, to infuse with
illegality what otherwise is a legal act (i.e., refusing to comply with
an arbitration award to which you were not party). /15/ However, the
two cases are not similar. Here, Respondent's conduct in November,
1979, is not alleged to constitute an unfair labor practice. The only
conduct complained of is the refusal, from and after June 19, 1980, to
implement the decision of the Panel. While Respondent may argue that
the events of November, 1979, are relevant to its defense against the
charge, /16/ evidence of such events is not prerequisite to sustaining
the charge. Clearly, the conduct alleged on June 19, 1980, in and of
itself might constitute an unfair labor practice. The case at bar falls
within the first kind of situation cited in Machinists, not the second.
Respondent next argues that the charge is untimely in that, if the
interest arbitration award became binding at all, it did so on May 20,
1980, since the interest arbitration agreement provides for no right of
appeal. However, paragraph 9 of the agreement cannot be construed as a
complete waiver of appeal rights. It states that the decision of the
Panel shall be final and binding on the parties and that further rights
of appeal are waived "except that all articles must be in conformance
with law and Executive Order." In order to give those words any meaning,
that paragraph must be construed to afford some sort of appeal, albeit a
limited one. This paragraph foreshadowed Section 7122 of the Statute in
that it merely provided that the decision of the Panel would be final
and binding in the absence of exceptions on certain grounds.
Similarly, Section 7122(a)(1) of the Statute provides, as a standard
of review, the inquiry whether an award is "contrary to any law, rule,
or regulation"; and Section 7122(b) provides that if no exceptions are
filed within 30 days, the arbitrator's award "shall be final and
binding". The provisions of the interest arbitration agreement are not
inconsistent with those of the Statute. The Panel's award was not
binding at least until the passage of thirty days from the date of its
issuance.
I conclude that the charge in Case No. 5-CA-842 was timely filed and,
having done so on the basis of the discussion above, I need not reach
the question whether the period of limitations was tolled by the Union's
motion to the Authority for enforcement of the Panel's award.
Collateral attack on the Panel's jurisdiction
In order to reach questions concerning rights of the parties at
various times preceding the date of the instant charges, the question
whether the jurisdiction of the Panel may be subject to collateral
attack must be resolved. I am persuaded that, on the facts of this
case, a collateral attack may not be made. /17/
Respondent argues that the common law applies to the interest
arbitration agreement reached in the fall of 1978 and not the body of
federal law spawned by the Supreme Court's decision in Textile Workers
Union v. Lincoln Mills of Ala. /18/ Even assuming that that argument is
tenable, the common law does not support Respondent's argument that it
may collaterally attack the Panel's jurisdiction and, from there, argue
that it had a right to withdraw from the interest arbitration agreement
at any time prior to the award. Both parties voluntarily submitted
their disputes to the Panel. Both participated to the extent of
appearing at hearings in December of 1978 and thereafter reaching
agreement on numerous contractual provisions. No question of the
Panel's jurisdiction arose until the summer of 1979 when the Union
requested hearings on issues declared negotiable by DOD. The question
of jurisdiction was raised at the meeting of the parties before Mr.
Ables in August of 1979 and the parties presented their views on the
matter in writing to him. In short, both parties had their "day in
court" on this question. Where the question of jurisdiction is raised
and litigated by the parties, the judgment should be conclusive as
between them and should preclude collateral attack. See, Stoll v.
Gottlieb, 305 U.S. 165 (1938). A contractual provision that findings of
a third party shall be final and conclusive on the parties is valid and
enforceable unless impeached on grounds of fraud or such gross mistake
to imply bad faith. See, United States v. Moorman, 338 U.S. 457, 461
(1950). The record is devoid of such evidence. The allegation of a
material breach on the part of the Union /19/ is not grounds for
allowing a collateral attack. As the Court stated in Rochdale Village,
Inc. v. Public Service Emp., Etc.: /20/
While under principles of general contract law a material
breach may discharge the non-breaching party of all contractual
obligations, see, Restatement of Contracts, Sec. 397, the strong
presumption of arbitrability in the labor relations area prevents
a breach-created discharge of the contractual duty to arbitrate
disputes arising "under" the contract.
Finally, paragraph 6 of the agreement specifically gave the Panel
"sole discretion to decide questions of procedure." Any question going
to the manner in which negotiable issues were to be decided was an issue
within the scope of the arbitration agreement and its resolution,
therefore, was for the arbitrator. Rochdale, supra. Respondent's
dissatisfaction with the resolution of that question could properly be
remedied only by filing exceptions to the decision of the Panel.
The unfair labor practice
Section 7122(a) of the Statute provides that exceptions to any
arbitrator's award may be filed by either party to the arbitration.
Section 7122(b) provides that:
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).
The Statute, on its face, and the legislative history of this
provision make it clear that there is to be no distinction made between
grievance and interest arbitration. The section-by-section analysis of
the House of Representatives' version of the Statute noted:
Section 7122 sets forth the procedures under which a party may
obtain review by the Authority of an arbitrator's award. The
procedures apply in the case of either an award in an arbitration
resulting from an impasse proceeding under section 7119(b), as
added by the bill, or an award in a grievance proceeding under
section 7121, as added by the bill. /21/
That the merits of an arbitrator's award are not subject to review in
an unfair labor practice proceeding is the only conclusion to be drawn
from the following language of the Conference Committee during its
consideration of the Statute:
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. /22/
The parties properly entered into binding interest arbitration under
the auspices of the FSIP and in accordance with the then extent
provisions of section 17 of Executive Order 11491. /23/ This use of
binding arbitration with approval of FSIP was carried over in Section
7119(b) of the Statute. /24/ As noted above, Section 7122(b) of the
Statute provides that once an arbitrator's award becomes final, an
agency shall take the actions required by the award. I conclude that
where, as here, the evidence demonstrates agency noncompliance with a
validly obtained arbitrator's award which has become final and binding
in the absence of duly filed exceptions, that award is not subject to
review in an unfair labor practice proceeding and such noncompliance is,
per se, a violation of Sections 7116(a)(1), (5), (6), and (8) of the
Statute. /25/
Official time
The parties have stipulated that the three employees, named in the
charge, requested official time, travel and per diem in order to attend
the hearings before the Panel which were conducted on February 4 and 5,
1980, in Washington, D.C., and that those requests were denied by
Respondent. Respondent argues that it was not a party to those hearings
and therefore it was under no obligation to grant official time to the
employees. In addition, Respondent argues that the Statute does not
expressly provide for travel and per diem and that the Authority's
interpretation in 2 FLRA No. 31, that entitlement to official time
carries with it entitlement to travel and per diem, is in error and
should be overruled.
The pertinent statutory provision is Section 7131(a) of Title 5,
United States Code, and provides:
Any employee representing an exclusive representative in the
negotiation of a collective bargaining agreement under this
chapter shall be authorized official time for such purposes,
including attendance at impasse proceeding, during the time the
employee otherwise would be in a duty status. The number of
employees for whom official time is authorized under this
subsection shall not exceed the number of individuals designated
as representing the agency for such purposes.
In view of the findings and conclusions reached earlier that the
award of the Panel was valid and cannot be collaterally attacked, I am
constrained to conclude that Respondent was a party to the hearings held
on February 4 and 5, 1980, notwithstanding its decision not to attend
them. Its nonattendance cannot vitiate its obligation to provide
official time in accordance with the Statute.
Respondent's invitation to "overrule" the Authority's interpretation
of the Statute in 2 FLRA No. 31 is not the first addressed to an
Administrative Law Judge. Not unsurprisingly, I decline to interrupt
the unanimity with which my colleagues have turned down such entreaties.
Unless and until such time as a decision of the Authority is overruled
by a court of competent jurisdiction, an Administrative Law Judge is
obliged to follow it.
Respondent next argues that the Union is only entitled to so many
representatives at the negotiation sessions or impasse proceedings as
management has designated for such purposes and, that since management
sent no one to the hearings on February 4 and 5, the Union is entitled
to official time for none of its representatives. That argument must be
rejected as reducing the statutory provision to a nullity. It is a
basic rule of statutory construction that a legislative enactment must
be construed so as to give it meaning. To accept Respondent's argument
would be to interpret the Statute as providing for official time only if
management is willing to bargain. The duty to bargain is mandatory as
is the duty to provide official time. The only limitation as to numbers
assumes that in order to meet its obligation to bargain, management will
send at least one person to the table. Where, as here, management
declines to attend a hearing which is capable of being conducted ex
parte, management acts at its peril and the only practical limitation on
the number of union representatives should be a rule of reason. Since
there were at least four management representatives appearing for
Respondent at the hearings conducted in December of 1978, it was
reasonable for the Union to expect management to bring at least as many
as the three representatives as were brought by the Union, if management
decided to attend the February, 1980, hearings at all. Accordingly, I
find Respondent's failure and refusal to grant official time, travel and
per diem to Messrs. Stickradt, Cook and Harvard, to violate Sections
7116(a)(1) and (8) of the Statute.
The remedy
The Union and the General Counsel seek a status quo ante remedy.
Respondent argues against such a remedy on grounds (1) that it did not
have adequate notice of the issues to be heard at the February 4 and 5
hearings; (2) that imposition of the Panel's award would not effectuate
the purposes of the Statute; (3) that the Union cannot receive a remedy
as a result of actions it took after the contract was repudiated; and
(4) that the Authority may not properly order implementation of
contractual terms which Respondent had no part in developing.
Resort to arbitration as the preferred means for resolving
labor-management disputes received its highest judicial imprimatur from
the United States Supreme Court in the Steelworkers Trilogy. /26/ That
Court decreed that the scope of review of an arbitrator's award should
be extremely narrow, that doubt as to whether an agreement to arbitrate
covers a particular subject should be resolved in favor of coverage, and
that an award should not be set aside for reasons of contractual
interpretation where that question has been resolved by the arbitrator.
As noted above, the parties entered into binding arbitration consistent
with the provisions of the Executive Order then in effect; that by
terms of paragraph 6 of the agreement, procedural questions were to be
decided at the sole discretion of the Panel; and, that under the
Statute, the procedure for review of an interest arbitration award is no
different from that for grievance arbitration. Since questions of
procedural due process were properly before the arbitrator, from whose
decision no exceptions were taken, they are not properly raised now to
argue against specific performance as a remedy.
After the decisions by the Supreme Court in the Steelworkers Trilogy,
the question whether an arbitrator's award is enforceable was answered
in the affirmative by the Fourth Circuit in Winston-Salem Printing
Pressman and Assistant Union v. Piedmont Publishing Co. /27/ Interest
arbitration has been recognized both under the Executive Order and the
Statute, and its enforceability is a necessary concomitant to continued
reliance on it as a means for expeditious settlement of labor disputes.
Arbitration arising under public sector labor law does not warrant an
approach different from that taken in the private sector. The Federal
Labor Relations Council recognized that parallel considerations obtain,
/28/ and they continue today. To hold that an arbitrator's award is not
enforceable (or here, not to grant a status quo ante remedy) is to
encourage parties to walk away from an agreed upon process whenever they
might become dissatisfied with its substance or procedure.
Respondent's argument that the Union should have gone to the FSIP to
mitigate its damages instead of proceeding to the arbitration hearing
must be rejected. The arbitration hearing was conducted with the
approval of FSIP and in lieu of direct FSIP involvement. Repudiation of
the interest arbitration agreement by Respondent was a calculated risk
taken at its peril. Having waived its right to file exceptions to the
award, Respondent cannot now equitably argue that it should not suffer
the consequences of its election.
Finally, Respondent argues that the Authority lacks the power to
order a status quo ante remedy, citing H. K. Porter v. NLRB. /29/
Although the Court in that case held that the obligation to bargain in
good faith did not give the NLRB the right to compel concessions or
judge the substantive terms of a collective bargaining agreement, that
is not the case where a party seeks implementation of the award of an
arbitrator. In that instance, both parties have agreed on the method by
which their disputes are to be resolved and the only issue is whether
they are to reap the benefit of their bargain. No "concession" is
involved, only specific enforcement of an agreement already freely
entered into by the parties.
Giving due consideration to all of the facts and arguments raised in
these cases, I can find no justification to withhold a status quo ante
remedy. Furthermore, I conclude that such a remedy is appropriate
because it is the only meaningful and effective way to remedy the
violation and the record fails to establish that such a remedy would
create a serious disruption of Respondent's operations. /30/ Having
found and concluded that Respondent has violated 5 U.S.C. 7116(a)(1),
(5), (6) and (8), I recommend that the Federal Labor Relations Authority
issue the following order pursuant to 5 C.F.R. 2423.29(c):
ORDER
ORDERED, that the United States Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Failing and refusing to authorize and provide official
time, travel and per diem to employees Jack Stickradt, Jerre
Harvard and Donald Cook, pursuant to the provisions of 5 U.S.C.
7131(a), while they are engaged in representing Council 214,
American Federation of Government Employees, AFL-CIO, their
exclusive representative, at final offer arbitration hearings.
(b) Failing and refusing to negotiate in good faith with the
American Federation of Government Employees, AFL-CIO; to
cooperate in impasses procedures and decisions; and to implement
a final offer arbitration decision rendered on May 20, 1980, by a
panel approved by the Federal Service Impasses Panel.
(c) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide Union representatives Jack Stickradt, Jerre Harvard
and Donald Cook official time for the performance of their
representational duties on February 4 and 5, 1980, and make them
whole for the annual leave they utilized on those dates and, upon
submission of an appropriate voucher, pay to them whatever travel
and per diem expenses an employee engaged in official Agency
business would be entitled.
(b) Implement the May 20, 1980, award of the Panel, effective
retroactively to June 20, 1980, and make whole the Union and
employees for any pecuniary or other losses suffered as a result
of Respondent's refusal to implement that award on June 20, 1980.
(c) Post at its facilities copies of the attached notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by the
Commander, Air Force Logistics Command, and shall be posted and
maintained for 60 consecutive days thereafter in conspicuous
places, including all bulletin boards and other places where
notices are customarily posted. Reasonable steps shall be taken
to ensure that the notices are not altered, defaced or covered by
any other material.
(d) Notify the Federal Labor Relations Authority in writing
within 30 days from the date of this Order as to what steps have
been taken to comply with the Order.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: June 22, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF THE
TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to authorize and provide official time,
travel and per diem to employees Jack Stickradt, Jerre Harvard and
Donald Cook while they are engaged in representing Council 214, American
Federation of Government Employees, AFL-CIO, their exclusive
representative, at final offer arbitration hearings.
WE WILL NOT fail or refuse to negotiate in good faith with the
American Federal of Government Employees, AFL-CIO: to cooperate in
impasses procedures and decisions; or to implement a final offer
arbitration decision rendered on May 20, 1980, by a panel approved by
the Federal Service Impasses Panel.
WE WILL NOT in any like or related manner, interfere with, restrain
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL provide Union representatives Jack Stickradt, Jerre Harvard
and Donald Cook official time for the performance of their
representational duties on February 4 and 5, 1980, and make them whole
for the annual leave they utilized on those dates and pay to them
whatever travel and per diem expenses an employee engaged in official
Agency business would be entitled.
WE WILL implement the May 20, 1980, award of the arbitration panel
approved by the Federal Service Impasses Panel, effective retroactively
to June 20, 1980, and make whole the Union and employees for any
pecuniary or other losses suffered as a result of our not implementing
that award on June 20, 1980.
(Agency or Activity)
By: (Signature)
Dated: . . .
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region V,
Suite A-1359, 175 West Jackson Boulevard, Chicago, Illinois 60604.
--------------- FOOTNOTES$ ---------------
/1/ In reaching his conclusion, the Judge found, and the Authority
agrees, that the charge in Case No. 5-CA-842 had been timely filed based
upon the date the arbitration award became final and binding under
section 7122(b) of the Statute. In this regard, see U.S. Soldiers' and
Airmen's Home, Washington, D.C., 15 FLRA No. 26 (1984). The Authority
also adopts the Judge's conclusion that there is no basis for a
collateral attack in the instant proceeding on the jurisdiction of the
arbitration panel.
/2/ Section 7122(a) of the Statute provides in pertinent part as
follows:
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(.)
/3/ H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 56 (1978), reprinted
in Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 702
(1979). Section 7122 of the Statute, as finally enacted and signed into
law, in all material respects is essentially as reported out of the
House Post Office and Civil Service Committee and there is no indication
in the legislative history that the stated intent of the House Post
Office and Civil Service Committee with respect to section 7122 of H.R.
11280 was not also the consensus of the Congress.
/4/ Section 7122 (b), as amended by the Civil Service Miscellaneous
Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 4, 98 Stat. 47, 48
(1984), provides as follows:
(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
backpay (as provided in section 5596 of this title).
/5/ H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 158 (1978), reprinted
in Legislative History, supra n. 3, at 826.
/6/ In view of this conclusion, the Authority finds it unnecessary to
pass upon the Judge's further finding that the Respondent also thereby
violated section 7116(a)(5) of the Statute.
/7/ The Authority notes the decision in Ables v. United States, 2
Cl.Ct. 494 (1983), aff'd, No. 83-1218 (Fed. Cir. Jan. 17, 1984), in
which the chairman of the arbitration panel involved herein sought
payment for services rendered in connection with the ex parte
arbitration proceeding. While it may be unclear whether and under what
circumstances an arbitrator may collect payment for such services, such
an issue is separate and distinct from questions concerning the
obligation to implement awards rendered in ex parte proceedings, with
which the Authority is here concerned.
/8/ Section 7105(g)(3) of the Statute provides:
(g) In order to carry out its functions under this chapter, the
Authority may--
. . . .
(3) require an agency or a labor organization to cease and
desist from violations of this chapter and require it to take any
remedial action it considers appropriate to carry out the policies
of this chapter.
See also section 7118(a)(7) of the Statute.
/9/ Section 7131(a) provides:
Sec. 7131. Official time
(a) Any employee representing an exclusive representative in
the negotiation of a collective bargaining agreement under this
chapter shall be authorized official time for such purposes,
including attendance at impasse proceeding, during the time the
employee otherwise would be in a duty status. The number of
employees for whom official time is authorized under this
subsection shall not exceed the number of individuals designated
as representing the agency for such purposes.
/10/ Counsel for the General Counsel's unopposed Motion to Correct
Transcript is granted.
/11/ The parties stipulated these facts as well as the fact that
Council 214, American Federation of Government Employees, AFL-CIO, since
November 20, 1979, has been and is not an agent of the American
Federation of Government Employees at the activity and facilities of
Respondent.
/12/ That section provides:
Except as provided in subparagraph (B) of this paragraph, no
compliant shall be issued based on any alleged unfair labor
practice which occurred more than 6 months before the filing of
the charge with the Authority.
/13/ 362 U.S. 411, 45 LRRM 3212 (1960).
/14/ 29 U.S.C. 160(b) which, in pertinent part provides:
. . . no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the
charge with the Board . . .
/15/ Respondent's brief at p. 20.
/16/ Cf., NLRB v. McCready & Sons, Inc., 83 LRRM 2674, 2676 (1973).
/17/ Notwithstanding this conclusion, I adhere to my original ruling
which allowed into the record evidence which is relevant to a collateral
attack. I am not persuaded that a collateral attack on an arbitrator's
decision would never lie. Query, would it be an unfair labor practice
not to implement an arbitrator's award obtained by fraud, deceit or
other chicanery? What if shortly after the period for filing exceptions
lapsed, a party discovered that the arbitrator had been unlawfully
influenced by the other party? Is it incumbent upon the discovering
party to take affirmative action in some forum or may that party sit
back until the malefactor seeks to take some action in the nature of
enforcing the suborned award? A certain amount of evidence must be
received in order to determine whether facts exist which might form the
basis of a successful collateral attack.
/18/ 353 U.S. 448, 40 LRRM 2113 (1957).
/19/ It is doubtful that a material breach could be found merely from
the Union's request that the Panel reconvene.
/20/ 605 F.2d 1290, 1297 (2nd Cir. 1979).
/21/ Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform Act of 1978,
Committee Print No. 96-7, Committee on Post Office and Civil Service,
House of Representatives, 96th Cong., 1st Sess., Nov. 19, 1979, p. 702.
/22/ Id. at 826.
/23/ That section provides, in pertinent part:
Negotiation impasses. When voluntary arrangements, including
the services of the Federal Mediation and Conciliation Service . .
. fail to resolve a negotiation impasse, either party may request
the Federal Service Impasses Panel to consider the matter. The
Panel . . . may recommend procedures to the parties for the
resolution of the impasse . . . Arbitration . . . may be used by
the parties only when authorized or directed by the Panel.
/24/ Where voluntary arrangements fail to resolve a negotiation
impasse subsection (2) provides:
the parties may agree to adopt a procedure for binding
arbitration of the negotiation impasse, but only if the procedure
is approved by the (Federal Service Impasse) Panel.
/25/ It is an unfair labor practice under Section 7116(a) for an
agency:
(1) to interfere with, restrain, or coerce any employee in the
exercise of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
(6) to fail or refuse to cooperate in impasse procedures and
impasse decisions as required by this chapter;
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/26/ United Steelworkers v. American Mfg. Co., 363 U.S. 564, 46 LRRM
2414 (1960); United Steelworkers v. Warrior and Gulf Navigation Co.,
363 U.S. 574, 46 LRRM 2416 (1960); United Steelworkers v. Enterprise
Wheel and Car Corp., 363 U.S. 593, 46 LRRM 2423 (1960).
/27/ 393 F.2d 221 (1968). The Court expressly rejected the opposite
view taken in Boston Printing Pressman's Union v. Potter Press, 241 F.2d
787 (1st Cir. 1957), a case decided prior to the Steelworkers Trilogy.
Public sector recognition of binding interest arbitration renders Potter
Press inapposite regardless of the extent to which it still may have
some vitality in the private sector.
/28/ See, Community Services Administration, FLRC No. 76A-149, 5 FLRC
728 (1977).
/29/ 397 U.S. 99, 73 LRRM 2561 (1970).
/30/ San Antonio Air Logistics Center (AFLC), Kelly Air Force Base,
Texas, 5 FLRA No. 22 (1981).