15:0710(139)CA - HHS Region II and AFGE Local 1760 -- 1984 FLRAdec CA

 15 FLRA No. 139
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, REGION II
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1760, AFL-CIO
 Charging Party
 
                                            Case No. 2-CA-20354
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Office Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 parties' stipulation of facts, accompanying exhibits, and the parties'
 contentions, the Authority finds:
 
    The complaint alleges that the Respondent, Department of Health and
 Human Services, Region II, violated section 7116(a)(1), (5) and (8) of
 the Statute by the action of its Personnel Office in failing to process
 the promotion and request for retroactive backpay for an employee of the
 Social Security Administration, Office of Hearings and Appeals (OHA),
 which the latter had sought pursuant to the outcome of an arbitration
 award rendered by Arbitrator Sidney J. Kronish on January 25, 1982.  /1/
 The Respondent refused to implement OHA's request based on its
 contention that compliance with the arbitrator's award would be unlawful
 as it would be contrary to the requirements of the Back Pay Act.
 Exceptions to the arbitrator's award were never filed pursuant to the
 provisions of section 7122(a) of the Statute.
 
    The relevant issue and supporting arguments raised by the parties are
 substantially identical to those involved in Department of Defense,
 Department of the Navy, United States Marine Corps Air Station, Cherry
 Point, North Carolina, 15 FLRA No. 137 (1984), wherein the Authority,
 after denying Respondent's defense that compliance would require an
 unlawful act, concluded that any failure to comply with a validly
 obtained arbitrator's award to which no exceptions have been timely
 filed constitutes a failure to comply with the requirements of section
 7122 of the Statute in violation of section 7116(a)(1) and (8) of the
 Statute.  In so concluding the Authority noted that "any contention that
 an arbitrator's award is deficient . . . must be made by invoking the
 procedures established by Congress in section 7122(a) of the Statute,
 and where exceptions are not filed pursuant thereto, the award becomes
 'final and binding.'" Pursuant to the above decision and for the reasons
 set forth by the Authority therein, the Authority concludes that the
 Respondent herein violated section 7116(a)(1) and (8) /2/ of the Statute
 by preventing the Office of Hearings and Appeals from complying with an
 arbitrator's award as required by section 7122 of the Statute.  /3/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Department of Health and Human Services, Region
 II, shall:
 
    1.  Cease and desist from:
 
    (a) Interfering with the efforts of the Social Security
 Administration, Office of Hearings and Appeals, Region II to comply with
 Arbitrator Sidney J. Kronish's January 25, 1982 arbitration award by
 failing to process the personnel papers submitted to the Regional
 Personnel Office in an attempt to comply with the award.
 
    (b) 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) Process the personnel papers submitted by the Social Security
 Administration, Office of Hearings and Appeals, Region II so as to
 comply with Arbitrator Sidney J. Kronish's January 25, 1982 arbitration
 award.
 
    (b) Post at its Social Security Administration, Office of Hearings
 and Appeals, Region II 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 Regional Personnel Officer,
 or his designee, and shall be posted and maintained for 60 consecutive
 days thereafter, in conspicuous places, including 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, 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.
 
    Issued, Washington, D.C., August 28, 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 interfere with the efforts of the Social Security
 Administration, Office of Hearings and Appeals, Region II to comply with
 Arbitrator Sidney J. Kronish's January 25, 1982 arbitration award by
 failing to process the personnel papers submitted to the Regional
 Personnel Office in an attempt to comply with the award.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce employees in the exercise of their rights assured by the Statute.
 
    WE WILL process the personnel papers submitted by the Social Security
 Administration, Office of Hearings and Appeals, Region II so as to
 comply with Arbitrator Sidney J. Kronish's January 25, 1982 arbitration
 award.
                                       (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 its provisions, they may communicate directly with the Regional
 Director, Region II, Federal Labor Relations Authority, whose address
 is:  26 Federal Plaza, Room 24-102, New York, New York 10278 and whose
 telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Regional Director dismissed the allegations in the charge
 that the Social Security Administration, Office of Hearings and Appeals,
 committed an unfair labor practice by failing to comply with Arbitrator
 Kronish's award, concluding that whatever action was necessary to seek
 implementation of the award had been taken.
 
 
    /2/ The Authority has previously held that the acts and conduct of
 higher level agency management may constitute an unfair labor practice
 where such conduct prevents agency management at the level of exclusive
 recognition from fulfilling its bargaining obligation under the Statute.
  See Department of the Interior, Water and Power Resources Services,
 Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982).  In
 the same manner, the acts and conduct of higher level agency management
 may constitute an unfair labor practice where such conduct prevents
 agency management at the level of exclusive recognition from fulfilling
 its obligations pursuant to section 7121 of the Statute in violation of
 the requirements of section 7122 of the Statute.
 
 
    /3/ In view of this conclusion, the Authority finds it unnecessary to
 determine whether the Respondent's conduct was also in violation of
 section 7116(a)(5) of the Statute.