19:0250(31)CA - Navy, Naval Submarine Base, New London, CT and NAGE Local R1-100 -- 1985 FLRAdec CA

 19 FLRA No. 31
 
 DEPARTMENT OF THE NAVY
 NAVAL SUBMARINE BASE
 NEW LONDON, CONNECTICUT
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R1-100
 Charging Party
 
                                            Case No. 1-CA-30308
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order 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, including the stipulation of
 facts, accompanying exhibits, and the contentions of the parties, the
 Authority finds:
 
    The complaint alleges that the Respondent, Department of the Navy,
 Naval Submarine Base, New London, Connecticut, violates section
 7116(a)(1) and (8) of the Statute by failing to comply with an
 arbitration award rendered on September 22, 1982, by Arbitrator Albert
 J. Hoban with regard to a grievance filed pursuant to the December 29,
 1980 collective bargaining agreement between the parties.  Article IX,
 Section 5 of the parties' agreement dealt with the payment of overtime
 to employees who were required to perform unscheduled work-related
 duties outside their normally scheduled work hours.  In pertinent part,
 the Arbitrator ruled that employees who were called upon to perform
 work-related activities outside their scheduled work hours were entitled
 to the two hour minimum overtime provided for in the contract,
 irrespective of whether the employees were required to return to their
 actual work station or the Base proper in order to carry out their
 function.  The Respondent did not file exceptions to the arbitrator's
 award as provided for in section 7122(a) of the Statute.  The Respondent
 complied with the award from approximately September 27, 1982, until
 August 21, 1983.  At that time, the Respondent advised the Charging
 Party that it was discontinuing the payment of the two hour minimum
 overtime in the circumstances outlined above because it had determined
 that such payments were illegal, citing an unpublished Comptroller
 General decision that had been issued on March 8, 1982.  The Charging
 Party made no bargaining proposals, as it felt the change was
 impermissible for the reasons stated in the complaint herein.
 
    The relevant issue and supporting arguments raised by the parties are
 substantially similar 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
 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 defense that compliance
 with the arbitrator's award would require a party to act illegally must
 be raised within the context of section 7122 of the Statute and that the
 Authority will not review the merits of such a contention in the context
 of a later unfair labor practice proceeding seeking compliance with the
 award.
 
    Accordingly, the Authority concludes herein that the Respondent
 violated section 7116(a)(1) and (8) of the Statute by ceasing to comply
 with Arbitrator Hoban's award subsequent to August 21, 1983.  /1/
 
                                   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 the Navy, Naval Submarine Base,
 New London, Connecticut, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to continue to implement Arbitrator Albert
 J. Hoban's September 22, 1982 arbitration award by discontinuing the
 payment of a minimum two hour overtime payment under the circumstances
 outlined in the award.
 
    (b) In any like or related manner interfering with, restraining or
 coercing its 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) Fully comply with Arbitrator Albert J. Hoban's September 22, 1982
 arbitration award by paying the two hour minimum overtime payment
 required by the award to employees where appropriate, and make whole any
 affected employee(s) by paying the two hour minimum overtime payment
 consistent with the Arbitrator's award, retroactive to August 22, 1983.
 
    (b) Post at the Department of the Navy, Naval Submarine Base, New
 London, Connecticut, 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, or a 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 ensure 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 I, 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., July 22, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., 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 continue to implement Arbitrator Albert J.
 Hoban's September 22, 1982 arbitration award by discontinuing the
 payment of a minimum two hour overtime payment under the circumstances
 outlined in the award.  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 fully comply with
 Arbitrator Albert J. Hoban's September 22, 1982 arbitration award by
 paying the two hour minimum overtime payment required by the award to
 employees where appropriate, and will make whole any affected
 employee(s) by paying the two hour minimum overtime payment consistent
 with the Arbitrator's award, retroactive to August 22, 1983.
                                       (Activity)
 
 Dated:  . . .  By:  (Signature) (Title) 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, Federal Labor
 Relations Authority, Region I, whose address is:  441 Stuart Street, 9th
 Floor, Boston, MA 02116, and whose telephone number is:  (617) 223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In so concluding, the Authority notes that the unpublished
 Comptroller General decision upon which the Respondent relied when it
 discontinued the overtime payments called for in Arbitrator Hoban's
 award was dated some four months prior to the hearing held by the
 Arbitrator and could have been raised in exceptions to the arbitrator's
 award.